It is the policy of this state to prohibit discrimination on the basis of race, color, religion, sex, national origin, age, the presence of any mental or physical disability, status with regard to marriage or public assistance, or participation in lawful activity off the employer's premises during non-working hours which is not in direct conflict with the essential business-related interests of the employer; to prevent and eliminate discrimination in employment relations, public accommodations, housing, state and local government services, and credit transactions; and to deter those who aid, abet, or induce discrimination, or coerce others to discriminate.

North Dakota Century Code 14-02.4-01

The University maintains a policy of nondiscrimination based on race, color, religion, creed, sexual orientation, national origin, sex, disability, or age in its services to the public, educational programs, financial aid, University-approved housing and food services, benefits and compensation, access to facilities, extracurricular activities, and employment of faculty, staff, and students.

Affirmative Action Officer, 9-11-03

SEE ALSO: UND Faculty Handbook VII-4 ( North Dakota Century Code 34-11.1 [Public Employees Relations Act]); UND Code of Student Life

 

1.1  EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION

1.1.1  State Board of Higher Education Policy:  Equal Employment Opportunity

Every vacant position shall be filled by considering all applicants with regard to the qualifications and performance requirements of the job. Discrimination based upon sex, race, color, religion, age, physical or mental disability, status with regard to marriage or public assistance, or participation in lawful activity off the employer’s premises during non-working hours in appointment, promotion, salary, or conditions of employment is prohibited.

Discrimination against an employee or applicant for employment, with respect to working conditions, work place assignment, or other privileges of employment, merely because the employee’s or applicant’s spouse is also an employee is prohibited. This prohibition does not apply to employment of the spouse of a person who has the power to hire or fire, or make evaluations of performance, with respect to the person involved. Employment in a department or institution headed or supervised by the employee’s spouse is permitted only if the spouse does not have the power to hire or fire or make evaluations of performance and such employment is consistent with SBHE Policy Section 603.3

State Board of Higher Education Policy Manual, 1-20-94 , Section 603.2

SEE ALSO:  UND Faculty Handbook VII-4 (North Dakota Century Code 15-10-17 [Specific powers and duties of board of higher education]); UND Code of Student Life

 

1.1.2 Nepotism

1. University system officers and employees shall comply with NDCC § 44-04-09, relating to nepotism. Accordingly, an officer or employee may not, except as permitted by law, serve in a supervisory capacity over, or enter into a personal services contract with, a member of the officer's or employee's immediate family.

2. When two or more members of the same immediate family are employed in the same department or institution, the head of the department or institution shall reassign responsibility for performance evaluations, salary recommendations, disciplinary actions and other supervisory authority as necessary in order to comply with NDCC § 44-04-09.

3. "Immediate family" means a parent (by birth or adoption), spouse, son or daughter (by birth or adoption), stepchild, brother or sister by whole or half blood or adoption, brother-in-law or sister-in-law, or son-in-law or daughter-in-law.

4. The chancellor may adopt procedures to ensure compliance with this policy.

State Board of Higher Education Policy Manual, 4-18-02 , Section 603.3

 

SEE ALSO:  North Dakota Century Code 34-11.1-04.1 and 44-04-09; North Dakota University System Procedure Manual, Section 603.3

 

1.1.3 UND Policy:  Equal Employment Opportunity and Affirmative Action

Appointment and promotion of all University faculty members shall be based on appropriate qualifications and performance. Relatives or spouses may be appointed to the same department provided that a vacancy exists, authorization has been given to fill the position and that salary and other benefits are in accord with responsibilities of the position and the experience and scholarly reputation of the appointee. No administrator, however, shall initiate or participate in institutional decisions involving direct benefit (initial appointment, retention, promotion, salary, leave of absence, etc.) to relatives or spouses. In such instances, all final decisions on faculty appointment shall be referred to the Vice President for Academic Affairs. (In instances involving graduate assistants, the decision shall be referred to the Graduate Dean; for Medical School faculty, to the President; and for staff, to the Director of Human Resources.)

The University's objective is to eliminate discrimination in appointments, promotions, wages, hours, or other conditions of employment. It is not the intent of this policy to encourage or discourage the employment of relatives within the same unit, but rather to emphasize the concept that the selection of personnel shall be solely on the basis of merit.

UND is an affirmative action employer as required by federal contract regulations. The University undertakes an evaluation of its workforce, analyzes workforce availability based on its major job groups and academic disciplines, and where appropriate, will make good faith efforts to enhance its recruitment and selection of women, minorities, individuals with disabilities, and veterans of the Vietnam era and disabled veterans. It also will promote programs, projects, and other opportunities that encourage the development and advancement of faculty and staff in their work and academic pursuits. Women, minorities, individuals with disabilities, and veterans of the Vietnam era and disabled veterans are invited to participate in any affirmative action or diversity opportunity for which they are eligible and which may meet their and/or the University’s needs.

Vice President for Academic Affairs and Provost; Affirmative Action Officer, 9-11-03

SEE ALSO:  UND Faculty Handbook VII-4 (North Dakota Century Code, 15-10-17 [Specific powers and duties of board of higher education], 44-04-09 [Nepotism], 44-04-10 [Violations of provisions against nepotism]); Executive Order 11246, as amended; Section 503, Rehabilitation Act of 1973, as amended; Vietnam Era Veterans’ Readjustment and Assistance Act of 1974, as amended.

1.1.4 Request For Accommodation Process

An employee with a disability who needs an accommodation in order to perform the essential functions of his/her position must notify his/her supervisor. An Accommodation Request Form must be completed and submitted to his/her supervisor who will then submit the form to the Affirmative Action Office. The form is available from the Affirmative Action Office and available online at: http://www.und.edu/org/adainfo.  Medical information may be needed to determine and identify the effective accommodation. All medical information is kept confidential and separate from personnel files. For more detailed information, please contact the Affirmative Action Office at 777-4171.

Affirmative Action Officer, 9-11-03

1.2  SEXUAL HARASSMENT

1.2.1  State Board of Higher Education Policy:  Sexual Harassment

1. Each institution shall:

a. Adopt a policy, consistent with applicable state and federal laws and regulations, prohibiting sexual harassment in connection with any activities associated with the institution;

b. Disseminate the sexual harassment policy to all current and new employees and to all students through appropriate publications;

c. Provide instruction regarding the policy in employee training programs;

d. Periodically review the effectiveness of the policy;

e. Maintain records relating to sexual harassment, including a record of all complaints filed;

f. Provide as part of the policy a grievance procedure within the institution for the reporting, investigation and disposition of sexual harassment complaints.

2. Institution policy shall include provisions governing relationships between faculty or other institution employees and students. Policies shall explicitly prohibit any form of sexual harassment of students, require disclosure by an employee of a romantic or sexual relationship with a student when the employee is responsible for actions affecting the student's academic standing, grades, scholarship or grant awards or employment at the institution, and establish procedures for eliminating a conflict or potential conflict of interest in the exercise of the employee's authority.

State Board of Higher Education Policy Manual, 6-20-96 , Section 603.1

1.2.2  UND Guidelines: Discrimination Because of Sex

A. Harassment on the basis of sex is a violation of Section 703 of Title VII (Civil Rights Act of 1964). Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

B. In determining whether alleged conduct constitutes sexual harassment, the University will look at the record as a whole and the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case-by-case basis.

C. Applying general Title VII principles, UND is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the University and regardless of whether the University's administration knew or should have known of their occurrence.

D. With respect to conduct between fellow employees, UND is responsible for acts of sexual harassment in the workplace when the University (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.

E. The University also may be responsible for the acts of non-employees, with respect to sexual harassment of UND employees in the workplace, when the University (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and corrective action.

University policy on equal opportunity and nondiscrimination is in effect. This policy includes sexual harassment under sex discrimination guidelines and covers academic and classified staff. Title IX, Education Amendments of 1972, covers students in federally assisted programs. The State Personnel Board has adopted sexual harassment policies for state employees. These policies prohibit sexual harassment and prohibit retaliation against a person filing a sexual harassment complaint.

Questions concerning the applicability of these guidelines to specific situations or incidents should be directed to the Affirmative Action Officer. Grievance procedures for complaints of discrimination are outlined in the Administrative Manual and in a brochure, which is available from the Affirmative Action Office. Following an investigation and a finding of sexual harassment, the employee(s) accused of sexually harassing another may be disciplined, including termination from the University.

1.2.3  Consensual Relationships

1.The University of North Dakota discourages consensual relationships, i.e., amorous, romantic, or sexual relationships, between faculty and students, staff and students, supervisors and subordinates, and students who have an authority relationship over other students. This policy is in effect when one individual has a control, power, authority, or responsibility position over another. UND expressly prohibits any form of sexual harassment of employees and students when a previous consensual relationship ceases to exist or such a relationship is rejected by one of the parties.

2. If the parties do engage in a consensual relationship as defined above, the person in the authority position is obligated to report the relationship to his or her department head or supervisor immediately. Failure to report the relationship or any significant delay in reporting may be cause for disciplinary action. Documentation of the reporting and any subsequent actions taken by the department head or supervisor, such as advising the parties of the potential for sexual harassment charges if the relationship ends, is required.

Affirmative Action Officer, 9-11-03

SEE ALSO: Section 703, Title VII ( Civil Rights Act of 1964 [Public Law 88-352], as amended); State Board of Higher Education Policy 603.1; Equal Opportunity/Affirmative Policy Statement and Procedures for Complaints of Discrimination or Harassment – Faculty Handbook Section III-1.4; and UND Code of Student Life

 

1.3  AFFIRMATIVE ACTION

The Affirmative Action Office is responsible for oversight of the University's affirmative action program; Rehabilitation Act of 1973, Sections 503 and 504; The Americans with Disabilities Act; Titles VI and VII of the Civil Rights Act of 1964; and Title IX of the Education Amendments of 1972 as well as compliance with federal and state laws and regulations involving civil rights, equal employment, and equal educational opportunity. Under equal employment and equal educational opportunity, the University declares that it will not discriminate on the basis of race, color, religion, sexual orientation, national origin, sex, disability, or age. Covered in the affirmative action programs are concerns to hire, promote, provide advancement, develop training programs, and otherwise encourage the inclusion of members of minority groups (racial/ethnic designations: American Indian or Alaska Native, Asian, Black or African American, Hispanic or Latino, Native Hawaiian or Pacific Islander), women, persons with disabilities, and Vietnam era and disabled veterans in the mainstream of University employment, education, and services where these individuals as a class may have had limited opportunities in the past.

Under rules and regulations required of federal contractors and recipients of federal monies, UND may utilize affirmative action programs to positively encourage the employment of women and minorities in those areas of the University in which workforce underutilization exists. Affirmative action may include, but is not limited to, specialized recruitment, training programs, internships, special projects, or other efforts necessary to employ or to advance in employment women or minorities. Affirmative action may be taken to enhance the employment opportunities of qualified disabled individuals, Vietnam era veterans and special disabled veterans.

Qualified employment applicants or employees with disabilities, both faculty and staff, may require reasonable accommodation to carry out their job functions. The individual needs to be on record with the University that he or she is disabled and is requesting a job-related accommodation. The faculty or staff member initially should discuss any accommodation requirements with the department chairperson or department head. The Affirmative Action Officer can provide assistance to the individual and to the department in achieving that accommodation. The North Dakota Division of Vocational Rehabilitation also is available for assistance to disabled persons. Section 504 of the Rehabilitation Act of 1973 requires that complaint procedures be made available to qualified individuals who meet eligibility requirements for receipt of services.

The Affirmative Action Office maintains resources on equal opportunity, affirmative action, and issues related to persons, minorities, and women. Copies of the Affirmative Action Plan are available upon request. Job announcements received in the Affirmative Action Office from other universities and employers are regularly sent to Career Planning and Placement for posting and to appropriate academic and nonacademic units.

Those individuals who believe that they have been subjected to unlawful discrimination are encouraged to contact the Affirmative Action Office. Grievance procedures and affirmative action/equal employment opportunity policies and procedures are available at: http://www.und.edu/dept/aao. 

All University publications, flyers, brochures, bulletins, forms, and other material disseminated to students, prospective students, faculty, staff, or to the public are required to carry the University's Equal Opportunity Policy Statement. Departments need to check with the Office of University Relations for the precise wording.

Affirmative Action Officer, 9-11-03

SEE ALSO:  UND Faculty Handbook III-1.4 - Equal Opportunity/Affirmative Action Policy Statement and Procedures for Complaints of Discrimination or Harassment.

 

1.4  EQUAL OPPORTUNITY/AFFIRMATIVE ACTION POLICY STATEMENT AND PROCEDURES FOR COMPLAINTS OF DISCRIMINATION OR HARASSMENT

A. Mission and Priorities

The University of North Dakota does not tolerate harassment in any form. Harassment is contrary to the stated mission of the University to serve “the state, the country, and the world community” and to encourage students “to make informed choices, to communicate effectively, to be intellectually curious and creative, to commit themselves to lifelong learning and the services of others, and to share responsibility both for their own communities and for the world.” See University of North Dakota Mission Statement. Harassment is in direct conflict with the identified priorities of the University to “reflect and promote respect and appreciation for diversity, human rights, and differences of opinion”; to “maintain clear and open lines of communication”; and to “ensure a positive work environment.” See University Campus Climate Priority Action Areas. The University of North Dakota recognizes that the existence of harassment disrupts all areas of the University community.

B. Employment

The University of North Dakota practices a policy of non-discrimination in recruiting, hiring, and promoting all of its employees—faculty, staff, and students. It is committed to administering all personnel actions including, but not limited to, demotion, transfer, use of facilities, treatment during employment, rates of pay or other forms of compensation, selection for training, lay off, or termination without regard to race, color, national origin, religion, sexual orientation, sex, age, creed, marital status, veteran’s status, political belief or affiliation, or physical, mental, or medical disability unrelated to the ability to engage in activities involved with the job. The University of North Dakota actively supports an affirmative action program in order to provide equal employment and educational opportunity in all areas: academic, supportive, and construction.

C. Educational Programs and Activities

It is the policy of the University of North Dakota that there shall be no discrimination against persons because of race, religion, age, creed, color, sex, disability, sexual orientation, national origin, marital status, veteran’s status, or political belief or affiliation, and that equal opportunity and access to facilities shall be available to all. This policy is particularly applicable in the admission of students in all colleges and in their academic pursuits. It is also applicable in University owned or University approved housing, food services, extracurricular activities, and all other student services. It is the guiding policy in the employment of students either by the University or by outsiders through the University and in the employment of faculty and staff.

II. HARASSMENT POLICY

Harassment of an individual or group that is related to their status in a protected class that is sufficiently severe, persistent, or pervasive so as to interfere with or limit the ability of the individual or group to participate in or benefit from the University of North Dakota’s programs or activities is prohibited. Harassment may take the form of oral, written, graphic, or physical conduct that is related to an individual’s or group’s protected class status. This includes gender, race, national origin, color, disability, or other protected classes.

( Title VI, Civil Rights Acts of 1964, as amended; Title IX, Education Amendments of 1972, as amended; Age Discrimination Act of 1975; Section 504 of the Rehabilitation Act of 1973 and the Americans With Disabilities Act of 1991; UND Faculty Handbook, Section III-1.2, 1.2.1, 1.2.2; North Dakota State Board of Higher Education Policy Manual, Section 602.1; North Dakota University System Human Resource Policy Manual; UND Code of Student Life Section 1, 1-1, 1-3 1-13, 1-14, Appendix I.)

III. REPORTING PROCEDURE AND DOCUMENTATION

All members of the University community are encouraged to report incidents of discrimination and harassment to University authorities. Complaints are to be handled at the lowest possible level to ensure a quick and effective response. Incidents of discrimination or harassment may occur in a variety of situations and therefore reporting should be to the following:

A. Dean of Students Office – handles complaints by students and other University affiliated personnel, usually after being reviewed at the departmental level concerning behaviors of one or more students in social, cultural, living, academic, or related environments;

B. UND Police Department – handles complaints by all individuals concerning hate crimes, criminal behavior, and activities, which may endanger an individual, a group, or property;

C. Academic Deans – handle complaints: (1) of students in academic settings under their authority including, but not limited to, faculty or staff discrimination or harassment of a student in an academic environment; professional relationship; internship, cooperative education, clinical, field site, or student teaching experience; or personal (consensual) relationship; and (2) of faculty and staff in employment settings within the college and programs under the Dean’s control;

D. Non-Academic Department Heads – handle complaints: (1) of students, faculty, and staff in relation to functions under their authority; and (2) of employees under their authority;

E. Residence Services – handles complaints of residents living in residence halls, University Children’s Center, apartments, and camp/conference programs (regarding housing issues only);

F. Student Financial Aid – handles complaints of students employed throughout the University in work-study and institutional employment and handles complaints concerning scholarships and other sources of financial aid;

G. Graduate School – handles complaints of graduate students related to academic issues, graduate assistantships, awards, and scholarships directed to graduate students;

H. School of Medicine and Health Sciences – handles complaints of medical students through the Office of Admissions and Student Affairs; handles complaints of medical residents through the Office of the Program Director at each resident site (Grand Forks, Fargo, Bismarck, and Minot), and the Office of the Dean. All other undergraduates and graduates of the School of Medicine and Health Sciences are handled by the Dean of Students Office and the Graduate School as applicable;

I. School of Law – handles complaints of law students through the Office of the Dean;

J. Affirmative Action Office – handles complaints of any discriminatory or harassment nature of students, faculty, staff, applicants for employment, contractors with the University, and non-University members who may believe that they have been denied aid, benefits, or services because of discrimination or harassment. The Affirmative Action Officer shall consult with and work with University offices, departments, officials, and the complaining party to resolve the complaint;

K. Other administrative offices, centers, and individual faculty or staff may have initial notice of a discrimination or harassment problem and are to direct the person or group with the complaint to one of the above offices or departments for assistance;

L. Complaints against Deans, Department Heads, or Vice Presidents should be directed to their supervisors. A complaint against the President should be directed to the Affirmative Action Office.

IV. NOTICE TO THE UNIVERSITY

An individual or group believing that they have experienced discrimination or harassment in employment, in an educational program, or in services for which they are eligible should notify one of the above offices appropriate to the Complainant’s status, promptly after the incident or act of discrimination or harassment occurs, or when the person has a reasonable knowledge or belief of the discrimination or harassment, preferably within 30 working days.

Information concerning an alleged prohibited discriminatory or harassing incident or situation, regardless of source or method of transmission, will be considered sufficient cause to begin an investigation. Depending upon the nature of the complaint or allegation, the University will try to keep the complaint or allegation confidential; however anonymity or confidentiality cannot be guaranteed.

Administrators, faculty, and staff are obligated to refer the individual and to notify the appropriate reporting office or the Affirmative Action Office, as defined in the procedures, about the content of the disclosure and incident information. Administrators, faculty, and staff may not dissuade an individual from informing them of a possible discriminatory or harassing situation. Administrators, faculty, and staff also are obligated to inform the individual of their required reporting obligations.

Once the University has notice of a complaint of discrimination or harassment through any administrator charged with investigating the complaint, that administrator shall notify the Affirmative Action Office immediately. As the office of record, all documentation shall be sent to the Affirmative Action Office when the case is completed. The Office of UND Police is the office of record for statistical data required by the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act.

V. PROCEDURES

A. Filing a Complaint

The appropriate “Reporting Office” or administrative authority, as noted above, shall take the complainant’s information, obtain the signature of the complainant with the information, notify the Affirmative Action Officer of the pending complaint and any other designated or appropriate administrative officers, and shall begin an investigation of the complaint. Complaints are to be handled at the lowest possible level to ensure a quick and effective response.

Complaints filed with the Affirmative Action Officer shall include the Complainant’s information, the signature of the complainant, and any other relevant information. If appropriate, the Affirmative Action Officer will notify the appropriate administrative officer in whose area the complaint is alleged to have occurred and will either refer the complaint to one of the appropriate offices above for handling or work cooperatively with the appropriate office or administrator to investigate and to make a finding based on the facts.  

The initial complaint may be in oral or written form. The complainant will be asked to sign a completed Complaint Form or sign a letter of complaint detailing the alleged charges. In order to fully investigate a complaint, it is best if the Complainant write an account of the alleged occurrences in his or her own words. This helps the Complainant to be clear as to events and gives the interviewer/investigator the best understanding of what was alleged to have occurred. If the Complainant does not choose to or cannot write an account, the Complainant may review and sign the written account taken by the interview/investigator. This review by the Complainant is necessary to make sure that all issues are included and understood. Failure to sign a statement may impede the University’s ability to effectively resolve the complaint.

B. Investigation and Time Lines

The Affirmative Action Officer may investigate, assist, advise, or accept a lead role in investigating any complaint of discrimination or harassment. Other trained University personnel, including those that serve as human resources professionals or administrators, judicial officers, crisis team members, or members of the specially trained investigative pool may investigate or assist in investigations or in fact finding.

If, after an initial investigation is completed, it is determined that an allegation cannot be resolved without a more comprehensive investigation, a three-member team will be selected from a specially trained pool to do a thorough investigation of the allegation.

Most fact-finding investigations and results should be concluded as expediently as possible, preferably within 60 working days of the complaint’s filing with the University official. However, investigations may be extended due to difficulty in obtaining documentation or unforeseen circumstances. In those situations, complaint investigations should be concluded in 120 working days. Reasons for exceptions shall be noted for the file. The complainant and the accused party shall be informed as to the progress or status of the investigation by the Affirmative Action Officer, by the office or administrator conducting the investigation, or by the investigative team, if one has been established.

C. Findings and Actions

Following the conclusion of the investigation, a finding will be made. The parties will be notified in writing as to the disposition of the complaint. If the finding determines that discrimination or harassment occurred, then corrections are to be instituted by the appropriately authorized administrator, administrative department, or division on behalf of the University. Disciplinary action against a student, faculty/academic staff member, or staff employee shall follow the established University procedures and due process requirements respective to the individual’s status with the University. These procedures and due process requirements are found in the University of North Dakota Code of Student Life, the University of North Dakota Faculty Handbook, the North Dakota State Board of Higher Education Policies and Procedures, and the North Dakota University System Human Resources Manual. Other institutional actions may include, but are not limited to, changing procedures, processes, aids, benefits, or services applicable to the circumstances. Contractors with the University may be found in default of the contractual agreement(s) not to discriminate.

A record arising from a disciplinary action against an individual based on his or her employment status shall be a part of the individual’s permanent and official employment file. This includes all faculty and staff and students in their capacity as student employees and graduate students employed as teaching, research, or service assistants. Disciplinary action that is taken against a student in relation to academic or other campus-related behaviors shall be managed by the Dean of Students Office, the Graduate School, the School of Law, and the School of Medicine and Health Sciences according to their processes and records retention, as is appropriate to the student’s standing.

Disciplinary action may include, but is not limited to, a verbal warning, written reprimand, suspension, probation, demotion, and up to and including termination of employment or privileges to remain as a student. Progressive disciplinary action is not required for either employment or student-conduct issues arising from a finding of discrimination or harassment.

D. Appeals

An appeal by the complainant may occur only when a finding does not support the complainant’s allegations. A complainant may appeal the finding in writing to the appropriate Vice President in whose area the complaint occurred. The appeal must be in writing and filed with the Vice President within 10 working days after the complainant receives notice of the findings. The Vice President shall review the documentation and make a determination to accept, reject, or modify the results of the findings. The Vice President shall have 30 working days to complete the appeal review. A written decision shall be sent to the complainant, the person or persons against whom the complaint was made, and appropriate administrative officers. An appeal to the Vice President completes the appeal process. No other appeal is available through the University. The President will handle an appeal of a complaint against a Vice President. In that instance, the President’s review is final

VI. DISCRIMINATION OR HARASSMENT COMPLAINTS MADE AS PART OF ANOTHER GRIEVANCE OR COMPLAINT PROCESS

Grievances filed through other processes outlined in the University of North Dakota Code of Student Life, the University of North Dakota Faculty Handbook, the North Dakota State Board of Higher Education Policies and Procedures, the North Dakota University System Human Resources Policy Manual, or related due process procedures may have as a component to the grievance an allegation of discrimination or harassment. The discrimination or harassment complaint shall be handled within that existing process and not as a distinct or separate process. The Office of Affirmative Action will be available for consultation regarding the investigation of the harassment portion of the complaint. The findings of the grievance shall include any determinations of fact related to the discrimination or harassment charges. Any appeal of the findings shall be according to the process appropriate to the status of the grievant.

Note that a complaint of discrimination or harassment is part of an on-going grievance shall be forwarded to the Affirmative Action Officer as part of the University’s record of discrimination complaints.

VII. MONITORING OF CORRECTIVE ACTIONS

The University through its administrative offices and the Affirmative Action Office, on an annual basis, shall review any corrective actions taken to resolve a discrimination or harassment complaint. A report of the review shall be provided to the President. If a recurrence of a behavior occurs or a corrective action is not effective, then the University shall take remedial steps to ensure that discrimination or harassment is not occurring.

VIII. NON-RETALIATION FOR FILING A DISCRIMINATION OR HARASSMENT COMPLAINT

No member of the University shall intimidate, threaten, coerce, or discriminate against any individual because he or she filed a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the jurisdiction of the University’s PROCEDURES FOR COMPLAINTS OF DISCRIMINATION OR HARASSMENT. Any complaint of retaliation shall be investigated as a new and separate complaint as provided in the PROCEDURES FOR COMPLAINTS OF DISCRIMINATION OR HARASSMENT.

IX. UNIVERSITY COORDINATOR FOR EQUAL OPPORTUNITY

The Affirmative Action Officer, Sally J. Page (Office address: 101 Twamley Hall; mailing address: Box 7097, Grand Forks, ND 58202-7097; phone 701-777-4171; e-mail address: affirmative action@mail.und.nodak.edu), is assigned the responsibility to be the University’s designated coordinator for receiving complaints of discrimination or harassment under the following federal regulations: Title IX of the Education Amendments of 1972 (sex/gender discrimination); Title VI of the Civil Rights Act of 1964 (race, color, national origin, discrimination); Age Discrimination Act of 1975 (age discrimination); Section 504 of the Rehabilitation Act of 1973 and the Americans With Disabilities Act of 1991 (disability discrimination); and other equal opportunity statutes for which a coordinator is not required. Any complaint or concern regarding discrimination or harassment, not resolved by the University, may be filed with the Office for Civil Rights, U.S. Department of Education, 111 North Canal Street, Suite 1053, Chicago, IL 60606-7204.

Affirmative Action Officer, 12-13-02 ; General Counsel, 12-13-02

SEE ALSO: UND Faculty Handbook III-1.3 (Affirmative Action)

 

III-2 GRIEVANCES

2.1  FACULTY GRIEVANCES - UND PROCEDURES TO IMPLEMENT THE STATE BOARD OF HIGHER EDUCATION FACULTY GRIEVANCE PROCEDURE

I.  INTRODUCTION

 

The University of North Dakota believes that providing a positive employment environment for faculty and other employees is vital to the mission of the University of North Dakota .  An important part of that environment is the adoption of fair and clear procedures for handling and resolving faculty concerns arising out of the employment context.  This section sets forth the University of North Dakota ’s procedures for resolving such concerns.

 

The policies of the State Board of Higher Education* (SBHE) distinguish between two types of faculty employment concerns.  One type is specifically limited to a faculty member’s complaint resulting from the Institution’s decision to dismiss, terminate, suspend, non-renew, or sanction the faculty member.  The procedures for resolving these complaints are governed by SBHE Policy 605.3.

 

The SBHE characterizes the other type of faculty employment concern as a “faculty grievance.”  SBHE Policy 612 defines a faculty grievance as an “allegation of a violation of a specific Board or Institutional policy, procedure or practice pertaining to the employment relationship” including the terms of the grievant’s employment contract. The procedures for resolving faculty grievances are governed by SBHE Policy 612.

 

II. GENERAL

 

THE FOLLOWING SETS OUT THE SBHE POLICIES FOR FACULTY GRIEVANCE AND THE IMPLEMENTATION OF THOSE POLICIES AT THE UNIVERSITY OF NORTH DAKOTA

SECTION 605.1 - ACADEMIC FREEDOM AND TENURE; ACADEMIC APPOINTMENTS

 

1. General Principles

III-3 PERSONNEL FILES

 

Faculty personnel files are the property of the institution, which shares the responsibility for the proper maintenance, accuracy, and appropriateness of materials in the file with the individual faculty member. There is but one officially designated academic personnel action file for each faculty member; however, other files may properly exist as long as the rights of the individual faculty members are appropriately protected, including their being routinely informed about the existence and nature of those other files. In addition to the specific academic personnel action file (usually located in the office of the faculty member's academic dean, unless otherwise specifically indicated as located elsewhere*), other files often are maintained in such offices as the faculty member's department, dean of the college or school of the faculty member, dean of the graduate school (if the faculty member is on the graduate faculty), the Office of the Vice President for Academic Affairs, Payroll Office, the Office of University Relations, Personnel Office, and the President's Office. Faculty members are encouraged to routinely monitor all of their personnel files.  

 *Official files are located in the dean's office for the following colleges: Business and Public Administration, Education and Human Development, School of Engineering and Mines, Law, Medicine, and Nursing. Official files for the Arts and Sciences faculty are located in the respective departments. Aerospace Sciences retains their files in the Odegard School Fiscal Affairs Office.

Vice President for Academic Affairs and Provost, 11-14-02

SEE ALSO: UND Faculty Handbook VII-4 (North Dakota Century Code 15-32.2[Teachers' Personnel Files])
 

3.1  PUBLIC EMPLOYEE PERSONNEL RECORDS

According to state law:

A. No documents that address an employee's character or performance may be placed in the file unless the employee has had the opportunity to read the material. The employee must acknowledge that the employee has read the material by signing the actual copy to be filed, with the understanding that the signature merely signifies that the employee has read the material to be filed and does not necessarily indicate agreement with its content. If the employee refuses to sign the copy to be filed, the agency head or the agency head's designated representative shall indicate on the copy that the employee was shown material to verify that the material had been read, and that the employee refused to sign the copy to be filed. In the presence of the employee and a witness, the agency head or the agency head's designated representative shall sign and date a statement verifying the refusal of the employee to sign the copy to be filed. The material must then be placed in the file.

B. The employee has the right to answer any material filed, and any answer must be attached to the file copy. The employee's answer to material filed may not be used as the basis for any subsequent adverse personnel action. If any material is found to be without merit or unfounded through an established grievance procedure, it must be immediately removed from the file and may not be used in any subsequent actions or proceedings against the employee.

C. The employee or the employee's designated representative must be permitted to examine the employee's official personnel file by appointment during normal business hours.

D. No anonymous letters or materials may be placed in the employee's file.

E. The employee must be permitted to reproduce at the employee's expense any material in the employee's file.

F. An employee may file a grievance regarding non-evaluation material placed in the employee's personnel file. A grievance is limited to an internal agency grievance unless such material is merged into a disciplinary proceeding.

G. This Act does not prohibit administrators from maintaining written notes or records of an employee's performance separate from the personnel file for the purpose of preparing evaluations or possible disciplinary action.

H. Administrators are encouraged to place in the employee's file information of a positive nature, including any such material received from outside competent and responsible sources, indicating special competencies, achievements, performances, or contributions of a professional or civic nature.

A record of access must be maintained by the employing agency and must be provided to the employee when the employee examines the employee's file.

North Dakota Century Code 54-06-21

 

3.1.1  Confidentiality of Medical and Employee Assistance Records

Any record of a public employee's medical treatment or use of an employee assistance program is not to become part of that employee's personnel record and is confidential and may not be released without the written consent of the employee. As used in this section, the term "public employee" includes any person employed by a public entity.

North Dakota Century Code 44-04-18.1 (1)
 

3.2  UND GUIDELINES AND PROCEDURES: ESTABLISHMENT, MAINTENANCE, AND UTILIZATION OF ACADEMIC PERSONNEL ACTION FILES

I. The Academic Personnel Action Files (non-student personnel in the academic divisions/departments, excluding those in the "classified" category whose files will be maintained in the Office of Personnel Services) shall be established in the office of the dean of each academic division, and may be entrusted to an officially designated custodian.

The following information is normally kept in the academic personnel action file (information indicated by an asterisk * is optional):

1. File Control Card--a card used to log particulars concerning access to the file, i.e., the date/time when the file was removed, person reviewing the file, and when it is returned; the card should remain in the file drawer whenever a file is removed to provide a record of its location and use. Each card should have the individual personnel identification on it.

2. Personnel Action Data Form--composed of a single-sheet summary of personal and professional data, including:

a. Full Name (last, first, middle)

b. Social Security Number

c. Date and Place of Birth

d. Current Address and Phone

e. Marital Status

f. Highest Degree with Date and Institution

g. Date of Initial Appointment

h. Current Rank and Date Achieved

i.Tenure Status (including any advance tenure credit)

j. Current Salary and Source(s)

3. Academic Record Group--composed of the following:

1. UND Academic Record Form (initial appointment)

2. UND Academic Record Supplements (a.k.a. October Supplements)

3. Curriculum Vitae (resume)

4. Academic Transcripts

5. Certification of Continuing and Advanced Education

4. UND Research and/or Creative Activity Record Group--composed of the following:

1.      A Record of Publications, Exhibit(s), or Abstracts; and/or Evidence of Creative Activity in the Discipline

NOTE: Maintenance of actual publications and other products of creative activity is the responsibility of the individual.

2.      Citations for Contributions to the Profession

3. Other (to be determined by the faculty and dean)

5. *Service Record Group--evidence of both "professional" and "community" service, as defined by University, college, and/or department, e.g., copies of citations, letters of appreciation, etc.
NOTE: This group may not be necessary, depending upon the adequacy of the UND Academic Record Supplements.

6. Evaluations Group--composed of the following, depending upon college/department policies:

a. Summaries of Course Evaluations by Students *

b. Comprehensive Departmental Evaluation Report *

c. Other Evaluative Documents, e.g., recommendations for developmental leave, promotion, retention, tenure, etc.

The Academic Personnel Action Files shall not contain any pre-employment materials that would breach the confidence in which they were obtained. Appropriate security shall be provided for the Academic Personnel Action Files, both through the training and conduct of administrative personnel controlling them and the physical repositories in which they are filed.

II. Correspondence and Contracts File--composed of the following (to be maintained separate from but contiguous to the preceding contents, and usually not made available for reference in personnel action decisions procedures but available by appointment to the individual for review):

A. On-going correspondence of a personal and/or confidential nature, regarding the individual

B. Routine administrative correspondence affecting the individual

C. Appointment notices

D. Copies of contracts

E. Copies of Personnel Action documents such as resignations, due process proceedings, etc.

III. Once the Academic Personnel Action File has been established for an individual, it shall be maintained in a current status with the following provisions:

A. Placement of materials in the file:

1. The individual may request placement of any material in his/her file that is consistent with the contents noted in part I. A, above. This may include any statement of rebuttal or protest of material in the file that is considered to be adverse.

2. The department chairperson may request placement of any pertinent information in an individual's file at any time, as long as such placement does not violate NDCC Section 54-06-21.

3. Only the dean (usually through the designated custodian) will actually place material in the individual file.

B. Individual academic personnel have a responsibility to review their files periodically to be cognizant of their contents and to assure their completeness and currency.

C. Material may be permanently removed from an individual file only under the following conditions:

1. The faculty member requests in writing to the dean that specific material be removed from the file, including the rationale for such removal; e.g., material is duplicative, such as when supplements summarize detailed information, or when complaints are proved inaccurate or misleading.

2. The dean consults with the department chairperson, and/or college/department personnel committees when appropriate, before making a decision on the request, unless the material is merely redundant.

3. The dean notifies the individual in writing about his/her decision to remove the material, and in those cases where removal is authorized, the individual and the dean remove and dispose of the material together.

4. Each academic division should have due process channels available through which an individual can appeal the denial of a request to remove material that is considered damaging because of inaccurate or misleading information. If any material is found to be without merit or unfounded through an established grievance procedure, it must be immediately removed and may not be used in any subsequent actions or proceedings against the employee.

IV. The Academic Personnel Action Files may be utilized by the following personnel under these conditions:

A. The individual may review his/her own file at any time that the custodian is available to withdraw it from the file. The review must be by appointment with and in the presence of the custodian, and file returned to the custodian upon its completion.

B. The dean and/or the department chairperson may review an individual file, but again it must be done in the vicinity of the repository.

C. Provision shall be made in colleges/departments for the utilization of the Academic Personnel Action Files in the University-wide review procedures for academic personnel decisions.

D. In all cases, the person or persons requesting an individual file to be utilized for whatever purpose shall sign the Control Card for that file, both when receiving it from and returning it to the custodian, noting the date/time of each. The Control Card will be maintained in the file repository at all times (excluding when it is being signed).

Vice President for Academic Affairs and Provost, 11-14-02

SEE ALSO:  UND Faculty Handbook VII-4 (North Dakota Century Code 15-38.2 [Teachers' Personnel Files]), VII-4 ( North Dakota Century Code 54-06 [General Provisions, State Officers])

 

III-4 OPEN GOVERNMENT REQUIREMENTS

 

4.1  MEETINGS OF THE STATE BOARD OF HIGHER EDUCATION

All Board meetings shall be noticed and open to the public, subject only to the exceptions permitted by law.

State Board of Higher Education Policy Manual, 4-24-97 , Section 200, Article VI

Groups or individuals wishing to appear before the Board shall contact the NDUS office to schedule an appearance. The Chancellor shall consult the Board president concerning such scheduled appearances.

State Board of Higher Education, 5-16, 17-96, Section 303.2

SEE ALSO: UND Faculty Handbook VII-3 (ND Constitution Article XI [General Provisions]), VII-4 (North Dakota Century Code 44-04-18 [Access to public records], 44-04-19 [Access to public meetings], 44-04-21 [Open voting], 15-10-17(1) [Specific powers and duties of board of higher education])

 

4.1.1  Open Meetings

Any group "acting collectively pursuant to authority delegated to the group by a governing body" is subject to North Dakota 's open meetings law. Therefore, groups created by law or Board of Higher Education policy, or groups delegated authority by the Board of Higher Education are subject to the open meetings law. These groups that are subject to the law include:

·         Board of Higher Education committees and sub-committees (e.g. audit committee)

·         presidential search committees

·         the agricultural research board

·         the student financial assistance program advisory board

·         the NDUS Human Resource Council and Safety/Risk Management Committee (and campus loss control committees).

·         Also, because they are created or delegated authority by the Board of Higher Education, faculty and student governing bodies are subject to the open meetings law.

These groups include:

·         Faculty senates (and committees)

·         Standing Committees on Faculty Rights and Special Review Committees

·         Campus student senates (and committees)

On the other hand, groups delegated authority by an institution president or the chancellor, and not by the Board of Higher Education, are apparently not subject to the open meetings law. These groups include the Chancellor's Cabinet, a president’s cabinet or council, department head meetings, department or division faculty meetings, etc. These groups are not acting pursuant to authority delegated by the Board of Higher Education; rather, they are acting pursuant to authority delegated by the institution CEO, a dean or other campus official, or they are ad hoc entities without formal authority.

North Dakota University System Counsel, 4-20-98

See also: NDCC Section 44-04-17.1 to Section 44-04-21.2

It is clear that the open government laws apply to any meeting for consideration of a matter delegated to UND by the State Board of Higher Education. Faculty appointment, removal, and tenure (or denial of tenure) are ultimately Board powers; any University committee or body acting in these areas must therefore observe the statutes. The Board, however; may--unless the individual being discussed requests that the discussion proceed as a public meeting--declare executive session in matters of appointment and removal. By inference, any University committee meeting on matters of appointment and removal may also declare executive session. An executive session must be formally declared, and the declaration must be recorded in the minutes; the declaration may be superseded by the subject of the meeting at her or his absolute election.

4.1.2   University Committee Meetings

All votes at public meetings must be open, public votes. All nonprocedural votes must be recorded roll call votes, with the votes of each member being made public at the open meeting and recorded in the minutes. University committees must also follow the open meetings law.

UND Senate Minutes, 10-1-87 , pp. 3053-3054

 

III-5 OUTSIDE ACTIVITIES AND INCREASED INCOME FOR FACULTY AND ADMINISTRATORS

 

A. A full-time member of the University of North Dakota faculty and administration is first and foremost a member of the University staff. Therefore, any outside employment, including participation in continuing education activities, must be approved by the chairperson of the department and the college dean or by the appropriate administrative supervisor.

A faculty member or administrator's first obligation is to perform all services associated with his or her contract at the University. The unique demands for a faculty member at the University of North Dakota go beyond the traditional teaching, research/creativity, service triad to include activities that cannot always be programmed or clocked. For example, a faculty member is expected to be accessible to his/her students and to spend time counseling and advising them. He/she is expected to participate in continuing professional development. He/she is expected to serve on departmental, college, and University-wide committees.

1. The workload assignment of individual faculty with regard to teaching, research/scholarly activities, and service shall be determined by department chairs/college deans according to UND college custom.

2. The assignment shall be adjusted to the individual based on the customary work period for the discipline, the individual's preferences as to teaching, research/activity, or service, and the needs and mission of the department, college, and institution.

B. When external support administered by the University is available for special activities commensurate with the mission of the University of North Dakota (research, teaching, service, or administration), an individual may have his or her assignment appropriately adjusted to reflect the effort devoted to the activity receiving the support.

1. Normally the University will not provide payment to the faculty in addition to their base contract salary rate from University-administered funds for such special activities.

2. Payment in addition to the base salary may be made for continuing education instruction which is beyond the assigned load.

3. The University recognizes that there may be instances where the adjustment in the workload assignment of a faculty member and corresponding responsibilities may justify an increase in the base contract salary. In cases where the department chairperson, the dean, and the Vice President for Academic Affairs approve of an adjustment in the salary rate of a faculty member, the President can authorize issuing a revised contract with an appropriately adjusted base salary. These special activities will involve teaching, research, administration, and/or service clearly in addition to the normal activities and responsibilities expected on these four dimensions through the regular base contract.

C. Professional activities which promote a faculty member's growth and competence in his or her discipline (such as consultant, workshop participant, judge, referee, etc.) and which are remunerated by funds not administered by the University will be regulated by the policy on consulting activities as published in the Faculty Handbook.

Approved: UND Senate, 1-15-81

 

5.1 RESEARCH GRANTS

5.1.1 Positions Funded by Federal and Grant Money

Employment contracts for all positions established and funded with federal or grant funds must include a provision permitting termination of that employment upon loss or reduction of those funds.

State Board of Higher Education Policy Manual, 11-19-99 , Section 607.2

 

5.1.2 UND Policy – Research Grants

Faculty having nine-month contracts may be employed for up to three full months' salary on research grants or other sponsored program activities provided the sponsoring agency's rules do not prohibit such salary payments and the total cumulative salary being paid to the faculty member from all University sources does not exceed the equivalent of three months salary.

Grants and Contracts Administration, 11-14-02

 

5.2 CONSULTING PRACTICES

5.2.1 State Board of Higher Education Policy: Outside Employment or Consulting Practices; Use of Institution Property

1. University system employees may be employed or engage in consulting activities or other services outside of their university system employment if the consulting activity or service or other outside employment does not interfere with university system job duties and does not constitute a conflict of interest.

2. Employees may not use institution or other state property, equipment, supplies or staff for political purposes. "Political purposes" means those activities defined in N.D.C.C. § 39-01-04

3. Employees may not use institution or system property, equipment, supplies or staff for remunerated consulting activities or other services for remuneration or for private or personal use, except as authorized under institution or system policies. Use of institution or system property, equipment, supplies or staff for remunerated consulting activities or other services for remuneration outside of university system employment is permitted only subject to written authorization and agreement establishing terms for payment or reimbursement to the institution for such use.

4. Each institution shall adopt policies or procedures implementing this policy, including rules governing payment or reimbursement for authorized use of institution or system property, equipment, supplies or staff.

State Board of Higher Education Policy Manual, 2-18-2000 , Section 611.5

 

5.2.2 UND Policy: Consulting

A full-time member of the University of North Dakota faculty and administration is first and foremost a member of the University staff. Therefore, any consulting must be approved by the chairperson of the department and the college dean or appropriate administrative supervisor. A request to accept a consulting assignment must be submitted in writing by the faculty member for review and approval prior to initiation of the activity.

A faculty member or administrator's first obligation is to perform all services associated with his or her contract at the University. The unique demands for a faculty member at the University of North Dakota go beyond the traditional teaching, research and creativity, service triad to include activities that cannot always be programmed or clocked. For example, a faculty member is expected to be accessible to his or her students and to spend time counseling and advising them. He or she is expected to participate in continuing professional development. He or she is expected to serve on departmental, college, and University-wide committees.

A faculty member's involvement in consulting, compensated or uncompensated, should not exceed four days in any one month and should be directly related to the faculty member's (1) area of professional expertise and (2) self-development in his or her profession. Any exceptions to this policy should be approved by the Academic Vice President.

Faculty are generally expected to provide their services to University activities and programs as part of their normal faculty duties. In unusual circumstances, regular University faculty and staff can serve as consultants to projects of activities supported with University administered funds provided all of the following criteria are satisfied: (1) The services of the individual are required and cannot be met by the utilization of the individual acting as a regular employee within the context of his or her employment contract with the University; (2) a selection process has been used to secure the most qualified individual available, considering the nature and extent of service to be required; (3) the services must be performed across departmental lines or disciplinary specialty or must involve a separate or remote operation within the University; and (4) the fee is appropriate considering the qualifications of the individual to be utilized, the individual's regular University salary rate, and the nature of the services to be rendered.

When the fee is to be charged to a sponsored project, it must conform to any limitation established by the grantor, and in no such case may the fee exceed the regular University base contract salary rate for an equivalent time period, although it may be less. In addition, the Office of Grants and Contracts may require a separate certification and additional information at the time the payment authorization is processed justifying the necessity of hiring the consultant and the level of payment.

NOTE: Special arrangements have been made for the Clinical Departments in the School of Medicine for increased income, outside activities, and consulting activities of their clinical faculty.

Approved: UND Senate, 1-15-81

 

5.2.3  Medical Service Plan – UND Medical School

The University of North Dakota School of Medicine and Health Services shall establish and maintain a medical service plan governing distribution of revenues generated by full-time School of Medicine faculty physicians.  All full-time faculty physicians shall participate in the plan.  School of Medicine officials shall establish a mechanism for input by faculty physicians in development and administration of the plan.  The plan shall:

1. Aid the Medical School financially with income generated by full-time faculty physicians;

2. Promote the growth of each Department by income generated by full-time faculty physicians within that Department;

3. Assure adequate allotment of time for academic pursuits by decreasing the incentive to earn excessive amounts of practice income at the expense of academic time; and

4. Provide participating physicians with financial rewards proportional and appropriate to their clinical endeavors.

State Board of Higher Education Policy Manual, 10-28-99 , Section 611.1

 

5.3  INTELLECTUAL PROPERTY

5.3.1  State Board of Higher Education Policy: Intellectual Property

1. General Principles.

The primary purposes of this policy are to encourage and promote research and scholarship based on the traditional principles of the academic profession. These products may constitute Intellectual Property that could be of financial benefit to the individuals involved and the Institution. This policy establishes guidelines to support faculty, staff, and students, in identifying, protecting and administering Intellectual Property and defining the rights and responsibilities of all involved. This policy governs unless a policy on specific Intellectual Property provides a different rule.

 2. Definitions.

a. "Author": Person who creates a Copyrightable Work.

b. "Copyrightable Work or Work": An original Work of authorship which has been fixed in any tangible medium of expression from which it can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device, such as books, journals, software, computer programs, musical work, dramatic works, videos, multimedia products, sound recordings, pictorial and graphical works, etc. A Work may be the product of a single Author or a group of Authors who have collaborated on a project. A Work is created by an Author.

c. "Creator": Either an inventor in the context of an Invention, or an Author in the context of a Copyrightable Work.

d. "Institution": The individual colleges and universities and the North Dakota University System.

e. "Intellectual Property": Collectively, all forms of property created by the mind including, but not limited to, Inventions, Copyrightable Work, Trademarks, and Tangible Research Property.

f. "Invention": A process, method, discovery, device, plant, composition of matter, or other Invention that reasonably appears to qualify for protection under the United States patent law (including, but not limited to, utility patent, plant patent, design patent, certificate of Plant Variety Protection, etc.), whether or not actually patentable. An Invention may be the product of a single inventor or a group of inventors who have collaborated on a project.

g. "Mediated Courseware": Teaching aids created and/or deployed electronically. Mediated Courseware may incorporate text, graphics, video, and audio elements. Examples of such materials include, but are not limited to, hypertext modules, simulation software, web sites, and databases containing numbers, images, or text.

h. "Significant Use of University System or Institution Resources": Significant Use of Institution Resources means an Author's use of other employees' time or Institution facilities or equipment that appreciably increases the Institution's costs beyond those normally incurred in support of an employee in the Institution. Significant Use does not include the normal use of Institution employees, facilities, or equipment commonly available to faculty, staff, or the public, such as libraries, Internet access, office space, office equipment, computers, and/or office supplies. Unless otherwise agreed, Significant Use also does not include the use of Institutional developmental leave time, so long as it does not appreciably increase the Institution's costs beyond those normally incurred in support of an employee of the Institution.

i. "Tangible Research Property": Tangible items produced in the course of research including, but not limited to, such items as biological materials, engineering drawings, integrated circuit chips, computer databases, prototype devices, circuit diagrams, and equipment. Individual items of Tangible Research Property may be associated with one or more intangible properties, such as Inventions, Copyrightable Work, and Trademarks. An item of Tangible Research Property may be the product of a single Creator or a group of individuals who have collaborated on the project.

j. "Trademark" (including Service Mark): A distinctive word, design, or graphic symbol, or combination word and design, that distinguishes and identifies the goods and services of one party from those of another, such as names or symbols used in conjunction with plant varieties or computer programs, or the Institutional names, logos, or derivatives thereof.

k. "Work For Hire": Defined pursuant to Federal Copyright Law which includes a Work prepared by an employee within the scope of employment or a Work created pursuant to a written agreement identifying the Work as a Work for Hire.

3. General Patent Policy.

a. The North Dakota State Board of Higher Education encourages the faculty, staff, and others associated with the Institutions under its jurisdiction to seek patents on Inventions as a method of bringing recognition and remuneration to all parties involved. Each Institution shall establish a "patent review procedure" to define the Institution's processing of such Inventions or discoveries, consistent with Board policy. The inventor(s) shall submit to the Institution the conception and/or reduction to practice of all potentially patentable discoveries prior to public "enabling" disclosure.

b. A patentable discovery may arise from the development of a new and useful process, device or apparatus, article of manufacture, composition of matter (including chemical compounds, microorganisms, and the like), plant, or related improvement, or a new use for a known material or device.  A public "enabling" disclosure is one which will enable others in the same or a related field to fully understand and practice the Invention. The Institutional "patent review procedure" shall assure provision of guidelines to the inventor(s) in defining what constitutes a public "enabling" disclosure.

c. The Institution shall have the right of first refusal to the title of all patentable discoveries derived with the use of facilities, gifts, grants, or contract funds through the university, subject to restrictions arising from the overriding obligations of the Institution pursuant to gifts, grants, contracts, or other agreements with outside organizations. The inventor(s) shall provide all necessary declarations, assignments, or other documents as may be necessary in the course of Invention evaluation, patent prosecution, or protection of patent rights to assure that title in such Inventions shall be held by the Institution or other parties as may be appropriate under the circumstances.

d. The Institution shall have six months in which to assess the technical and commercial viability and patentability of the discovery in accordance with Institutional procedures. If the Institution judges the discovery not to be patentable, or decides not to pursue a patent, and in the absence of over-riding obligations to outside sponsors of the discovery, all rights will revert to the inventor. In no instance, and regardless of ownership of the patent, may the Institution's name be used in connection with the marketing of the Invention.

1. Subject to restrictions arising from overriding obligations of the Institution pursuant to gifts, grants, contracts, or other agreements with outside organizations, the Institution agrees, for and in consideration of the assignment of patent rights, to pay annually to the named inventor(s), or to the inventor(s)' heirs, successors, or assigns, a minimum of 30 percent of the net royalties and fees received by the Institution. Net royalties are defined as gross royalties and fees less the expenses incurred by the Institution in conducting the research and in procuring, protecting, preserving, maintaining, and licensing the patent and related property rights, and such other costs, taxes, or reimbursements as may be necessary or required by law.

2. When there are two or more inventors, each inventor shall share equally in the inventor's share of royalties, unless all inventors have agreed in writing to a different distribution of such share. The Institution will have final authority over any agreement purporting to share rights and/or royalties between participating parties.

3. In addition to the inventor(s) share, the net royalties shall be disbursed by negotiated agreement with allocations to the originating department, the originating college/school, and the Institution.  In the disposition of any net royalty income accruing to Institutional parties, other than the inventor(s), support of research shall receive first consideration. The "patent review procedure" shall outline the negotiation and distribution mechanism at each Institution.

4. The provisions of this section apply to plant variety protection unless inconsistent with Institution policy.

4. General Copyright Policy.

a. Except as otherwise explicitly provided under this policy or applicable law, an employee who creates a Work retains copyright ownership of the Work.  If there has been Significant Use of University System or Institutional Resources, the provisions of section 4b of this policy shall apply.

b. If there has been Significant Use of Institutional Resources, as defined in section 2 of this policy, to create a Copyrightable Work, the ownership of which is vested in the individual employee, the Institution shall be reimbursed out of the royalties, in accord with an agreement between the employee and the Institution, up to that amount that constitutes the Institution's Significant Use. The Institution shall be reimbursed for the Significant Use of any facilities, personnel or resources, except those considered part of the normal academic environment including library facilities.

c. If employees are employed or commissioned by the Institution or agencies of the Institution for the creation of Work, or if by prior agreement they are assigned to produce or develop Work in the course of their regular duties, and if such Work is deemed appropriate for copyright, it must be reported to the Institution pursuant to its copyright review procedure. In such instances the Institution shall have the first option to secure copyright in the name of the Institution. Should the Institution decide, in writing, it would not be appropriate to secure copyright, the employee then may proceed to personally secure the copyright.

d. Royalties received as a result of copyright ownership by the Institution will be disbursed at least 30 percent to the employee(s) and the remainder pursuant to the copyright review procedure.

5. Mediated Courseware.

a. Self-initiated Mediated Courseware. When employees develop Mediated Courseware without specific direction by the Institution, unless otherwise agreed, the ownership of the courseware shall remain with the employee.  Normally, no royalty, rent or other consideration shall be paid to the employee when that Mediated Courseware is used for instruction at the Institution and such Mediated Courseware shall not be used or modified without the consent of the employee. While the Creator is under Institutional employment, the Mediated Courseware shall not be sold, leased, rented or otherwise used in a manner that competes in a substantial way with the for-credit offering of the employee's own Institution unless that transaction has received the approval of the chief academic officer of the Institution. The Institution shall have a perpetual, non-exclusive royalty-free right to use such courseware for archival research purposes. Should approval be granted to offer the course outside of the Institution, the provisions of section 4b of this policy shall apply.

b. Institution-directed Mediated Courseware. When the Institution directs in an employment contract the creation of a specific Mediated Courseware, the resulting Mediated Courseware belongs to the Institution and the Institution shall have the right to revise it and decide who will utilize the Mediated Courseware in instruction. The Institution may specifically agree to share revenues and control rights with the employee.

c. Institutions shall develop procedures for reporting the development of Institution-directed Mediated Courseware to the appropriate administrator at the Institution.

6. Copyrightable Software.

Unless a separate written agreement provides otherwise, software created by employees within the scope of their employment and not covered under Mediated Courseware in section 5 of this policy shall be treated as a Work for Hire, owned by the Institution and commercialized pursuant to the General Patent Policy, with the employee(s) getting a minimum of 30 percent of the net royalties and fees.

7. Student Work.

a. The ownership of copyrights in student Work is governed by the following:

1. Copyright ownership of student Work that is performed in whole or in part by the student with financial support in the form of wages, salaries, stipend, or grants from funds administered by the Institution shall be determined in accordance with the terms of the support agreement, or in the absence of such terms, shall become the property of the Institution.

2. Copyright ownership of student Work generated by research performed in whole or in part utilizing equipment or facilities provided by the Institution under conditions that impose copyright restrictions shall be determined in accordance with such restrictions.

3. Students will own the copyrights to their Work not within the provisions of (1) and (2) above; however, a student must, as a condition to a degree award, grant royalty-free permission to the Institution to reproduce and publicly distribute, including by electronic means, copies of the student's Work.

4. Where there is Significant Use of Institution Resources, copyright ownership shall be determined under section 4b of this policy.

b. Ownership of student Inventions shall be governed by the Patent Policy in section 3 of this policy.

8. General Trademark Policy

Each Institution may develop a Trademark policy that provides for the protection of the Trademarks and Service Marks of the Institution.

9. Institutional Procedures. Each Institution shall adopt procedures implementing this policy that include:

a. Procedures for required disclosure of Intellectual Property;

b. Procedures for review, evaluation, and protection of Intellectual Property;

c. Rules governing distribution of net royalties or fees;

d. A process for resolving disputes; and

e. A process for informing faculty, staff, and students of the rights and responsibilities of Intellectual Property.

10. Transfer of Rights

a. Institutions may assign or transfer ownership rights in Intellectual Property to independent foundations created for the purpose of obtaining or administering and marketing Institution Intellectual Property, receiving gifts, or supporting or promoting the Institution or Institution research.

b. It is the responsibility of employees to ensure that the terms of their consulting agreements with third parties do not conflict with their commitments to the Institution. Each employee shall make the nature of the employee's obligations to the Institution clear to any third party for whom the employee expects to consult. Specifically, the scope of the consulting services must be distinguished from the scope of research commitments to the Institution.

State Board of Higher Education Policy Manual, 6-20-02 , Section 611.2

 

SEE ALSO: North Dakota Century Code 47-21 (Copyrights)

 

 

            5.3.2        UND Policy: Intellectual Property

 

I.  General Principles.

a.       The Institution encourages and promotes research and scholarship based on the traditional principles of the academic profession. These products may constitute Intellectual Property that could be of financial benefit to the individuals involved and the Institution. The primary purposes of this policy are to establish guidelines to support faculty, staff, and students, in identifying, protecting and administering Intellectual Property and defining the rights and responsibilities of all involved. This policy governs unless a specific policy provides otherwise.

b.      Any person who is uncertain as to how to identify a potential Copyrightable Work, Invention, Trade Secret or Tangible Research Property, or how the Institution implements any of these policies should contact the Vice President for Research and request guidance.

 

II.     Definitions.

a.       “ Author”:  A person who creates a Copyrightable Work.

b.      “ Copyright Agreement”: A written and signed agreement between the Author(s) and the Institution that explicitly defines the ownership of the Copyrightable Work, any control rights in cases of Mediated Courseware, any reimbursement for Significant Use of Institutional Resources, and the sharing of royalties.

c.       “ Copyrightable Work or Work”: An original Work by an Author which has been fixed in a tangible medium of expression from which it can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device, such as books, journals, software, computer programs (including source code), musical Work, dramatic Work, videos, multimedia products, sound recordings, pictorial and graphical Work, etc.  Any Copyrightable Work that is also an Invention shall be governed by the General Patent and Trade Secret Policy and not the General Copyright Policy.  A Work may be the product of a single Author or a group of Authors who have collaborated on a project.

d.      “ Costs of Invention Protection”:  The expenses incurred by the Institution in conducting the research and in procuring, protecting, preserving, maintaining, and licensing the Invention and related property rights.  This includes the costs in securing patent protection in the United States and any foreign jurisdiction.

e.       “ Cumulative Net Royalties”:  The cumulative lifetime gross royalties and licensing or assignment fees less the expenses incurred by the Institution in procuring, protecting, preserving, maintaining, marketing and licensing the patent and related property rights including legal fees associated with the Invention, fees for patentability and marketability searches, fees arising out of litigations, fees for legal advice or any fees or costs directly attributable to the invention being licensed.  Indirect costs, overhead or other Institution costs usually associated with operation of the Institution and not directly attributable to the Invention will not be deducted from gross revenues.

f.        “ Institution”:  The University of North Dakota .

g.       “ Intellectual Property”:  Collectively, all forms of property created by the mind including, but not limited to, Inventions, Copyrightable Work, Trademarks, and Tangible Research Property.

h.       “ Intellectual Property Protection Procedure”:  The procedure established under VI(n) for review of Inventions by the Institution.

i.         “ Invention”:  A process, method, discovery, device, plant, composition of matter, know-how, or other Invention that reasonably appears to qualify for protection under United States patent law (including, but not limited to, utility patent, plant patent, design patent, certificate of Plant Variety Protection, etc.), whether or not actually patentable. This includes software which may also be a Copyrightable Work.  An Invention may be the product of a single Inventor or a group of Inventors who have collaborated on a project.

j.        “ Invention Disclosure”:  A written document which allows one skilled-in-the-art to fully understand and practice an Invention.

k.      “ Invention Disclosure Committee.”  The Invention Disclosure Committee will be composed of one member from the School of Engineering and Mines, School of Medicine & Health Sciences, School of Sciences and Arts, John D. Odegard School of Aerospace Sciences, and ad hoc member from any School or Center with an Invention Disclosure advancing to Invention Disclosure Committee review.  Each school will have one member and one alternate.   All members will serve two (2) year terms and will be appointed by the VP for Research.

l.         “ Inventor”:  An individual who contributes to the conception of an Invention under U.S. patent law and who is (are) identified as such on the licensed patent, patent application or unpatented technology. In the case of a patent or patent application, according to U.S. patent law, an Inventor’s contribution must be applicable to at least one claim.

m.     “ Licensing Revenue.”  Revenue derived from any agreement licensing or assigning Intellectual Property or Invention rights to a third party in exchange for payment of licensing fees, research fees, milestone fees, sponsored research or development, royalties, equipment, or like in kind payments.

n.       “ Mediated Courseware”:  Teaching aids or instructional assets created and/or deployed electronically. Mediated Courseware may incorporate text, graphics, video, and audio elements. Examples of such materials include, but are not limited to, hypertext modules, simulation software, web sites, and databases containing numbers, images, or text.

o.      “ PMO.”  A PMO or Patent Management Organization is a third party, which is a nonprofit organization described in section 501(c)(3) of the Internal Revenue Code of 1986, that has as one of its primary functions the management of Institution Inventions and receives Licensing Revenue and gifts, or supporting or promoting the Institution or Institution research under U.S. 37 CFR Part 401 and 35 U.S.C. 200-212.

p.      “ Public Disclosure”:  Means describing an Invention in a printed publication, a patent application or at a conference, meeting, or other public gathering, in the United States or any other country, sale or offered for sale of Invention, use of the Invention, other than as part of experimental use, in the United States, or disclosure to any person who is not required to maintain the Invention’s confidentiality.   

q.      “ Significant Use of Institutional Resources”:  An Author’s use of other employees’ time or Institutional facilities or equipment that appreciably increases the Institution’s costs beyond those normally incurred in support of an employee in the Institution. Significant Use does not include the normal use of Institutional employees’ time, facilities, or equipment commonly available to faculty, staff, or the public, such as libraries, internet access, office space, office equipment, computers, and/or office supplies. Unless otherwise agreed, Significant Use also does not include the use of Institution developmental leave time, so long as it does not appreciably increase the Institution’s costs beyond those normally incurred in support of an employee of the Institution.

r.        “ Tangible Research Property”:  Tangible items produced in the course of research including, but not limited to, such items as biological materials, engineering drawings, integrated circuit chips, computer databases, prototype devices, circuit diagrams, and equipment. Individual items of Tangible Research Property may be associated with one or more intangible properties, such as Inventions, Copyrightable Work, and Trademarks. An item of Tangible Research Property may be the product of a single Author, Inventor or a group of individuals who have collaborated on the project.

s.       “ Technology Transfer and Commercialization Officer”:  The individual holding responsibility for the office of Technology Transfer and Commercialization at the Institution or, where       appropriate, his or her designee.

t.        “ Trade Secret”:  Information, including a formula, pattern, compilation, program, device, method, technique or process, that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.

u.       “ Trademark” (including Service Mark):  A distinctive word, design, or graphic symbol, or combination word and design, that distinguishes and identifies the goods and services of one party from those of another, such as names or symbols used in conjunction with plant varieties or computer programs, or the Institutional names, logos, or derivatives thereof.

v.       “ Unit.”  Administrative, academic or research unit of the Institution that provided the environment in which the research or investigation of the Inventor was conducted.

w.     “ University System”:  The North Dakota University System.

x.       “ Vice President for Research”:  The individual holding the office of Vice-President for Research at the Institution or, where appropriate, his or her designee.

y.       “ Work for Hire”:  Defined pursuant to Federal Copyright Law which includes a Work prepared by employees (staff, faculty, or student) within the scope of their employment or a Work created pursuant to a written agreement identifying the Work as a Work for Hire. Unless a Copyright Agreement provides otherwise, software created by employees within the scope of their employment and not treated as Mediated Courseware under section IV of this policy shall be treated as a Work for Hire.

 

III.   General Copyright Policy.

a.       Except as otherwise explicitly provided under this policy or applicable law, an employee who creates a Work retains copyright ownership of the Work.

b.      If there has been Significant Use of Institutional Resources to create a Copyrightable Work, the ownership of which is vested in the individual employee, the Institution shall be reimbursed out of the royalties produced by the Work, in accord with a Copyright Agreement between the employee and the Institution up to the value of the Significant Use of Institutional Resources. 

c.       If an employee creates a Work for Hire, the employee must disclose the Work to the Institution pursuant to section III F. In such instances the Institution shall have the first option to secure copyright in the name of the Institution. Should the Institution decide, in writing, it would not be appropriate to secure copyright, the employee then may proceed to personally secure the copyright.

d.      Copyright ownership of Work developed as a result of Work supported partially or fully by an outside agency through a contract or grant shall be determined in accordance with the terms of the contract or grant. In those cases where copyright ownership is shared between the sponsor and the Institution, the employee may share in the royalties produced by the Work in accord with a Copyright Agreement between the employee and the Institution.  In those cases where copyright ownership is vested in the Institution, the Institution shall have the first option to secure copyright in the name of the Institution. Should the Institution decide, in writing, it would not be appropriate to secure copyright, the employee then may proceed to personally secure the copyright.

e.       Royalties received as a result of copyright ownership by the Institution will be disbursed at a minimum of 30 percent to the employee(s) and the remainder pursuant to the negotiated Copyright Agreement. No limit shall be set on the absolute amount of royalty income the employee(s) may earn, except that it shall be in keeping with University System policy.

f.        When an Author creates a Copyrightable Work the following steps should be followed to establish a Copyright Agreement between the Author and the Institution:

1.      The Author will initiate the process by delivering a copy of the work and a proposal for  the terms of the Copyright Agreement to the Vice President for Research.

2.      After review, the Vice President for Research will forward a proposed Copyright Agreement for review and approval by appropriate department or unit heads, dean or administrative unit heads, and the Vice President for Academic Affairs and Provost for review and comment.

3.      A Copyright Agreement will be entered into between the Author and the Vice President for Research on behalf of the Institution.

4.      The Institution shall be responsible for copyright registration of Work owned by the Institution, and for administering contracts with its Authors, including the responsibilities associated with maintaining records for copyright registration, royalty collection and distribution, marketing, and such other actions as are appropriate.

5.      Authors of Works for which ownership vests in the Institution shall warrant that such Work does not infringe any preexisting copyright and shall cooperate with the Institution in the pursuit of copyright protection.

6.      Disputes and questions arising under the Copyright Agreement shall be submitted to the Vice President for Academic Affairs and Provost for resolution.

 

IV.  Mediated Courseware.

a.       Self-initiated Mediated Courseware. When an employee develops Mediated Courseware without specific direction by the Institution, unless otherwise agreed, the ownership of the Mediated Courseware shall remain with the employee. Normally, no royalty, rent, or other consideration shall be paid to the employee when that Mediated Courseware is used for instruction at the Institution and such Mediated Courseware shall not be used or modified without the consent of the employee. While the Author is employed by the Institution, the Mediated Courseware shall not be sold, leased, rented or otherwise used in a manner that competes in a substantial way with the for-credit offering of the Institution unless approved by the Vice President for Academic Affairs and Provost of the Institution. The Institution shall have a perpetual, non-exclusive, royalty-free right to use such courseware for archival research purposes. Should approval be granted to use the Mediated Courseware outside of the Institution, the provisions of section III.b of this policy shall apply.

b.       Institution-directed Mediated Courseware. When the Institution directs in an employment contract the creation of a specific Mediated Courseware, the resulting Mediated Courseware belongs to the Institution and the Institution shall have the right to revise it and decide who will utilize the Mediated Courseware in instruction. Development of Institution-directed Mediated Courseware shall be reported to appropriate administrator(s) at the Institution through a Copyright Agreement. The Institution may specifically agree to share revenues and control rights with the employee pursuant to the Copyright Agreement.

 

V.     Student Work.

a.       The Copyright ownership of student Work that is performed in whole or in part by the student with financial support in the form of wages, salaries, stipend, or grants from funds administered by the Institution shall be determined in accordance with the terms governing the financial support or in the absence of such terms, shall become the property of the Institution.

b.      The Copyright ownership of student Work generated by research performed in whole or in part utilizing equipment or facilities provided by the Institution under conditions that impose copyright restrictions shall be determined in accordance with such restrictions.

c.       Students will own the copyrights to their Work produced as students of the Institution, but not within the provisions of V.a  and V.b above; however, a student must, as a condition to a degree award, grant royalty-free permission to the Institution to reproduce and publicly distribute, including by electronic means, copies of the student’s Work.  Where there is Significant Use of Institutional Resources, the copyright ownership shall be determined under section III. Of this policy.

 

VI.  General Patent and Trade Secret Policy (“Policy”).

a.       The Institution encourages the faculty, staff, and others associated with the Institution to pursue patent and Trade Secret protection for Inventions as a method of bringing recognition and remuneration to Inventors and the Institution.

b.      Section VI(n) outlines the procedure for processing of such Inventions or discoveries. The Inventor(s) shall submit an Invention Disclosure to the Institution at least 60 days prior to Public Disclosure of the Invention.  No faculty member, staff member, or student of the University may make a Public Disclosure of an Invention following the filing of an Invention Disclosure without the express written consent of the Vice President for Research or their designee.  In the event that the Invention has been assigned to or licensed by a third party, the Inventor at the written request of the third party may make Public Disclosure on behalf of the third party.  In addition, no faculty member, staff member, or student of the University shall represent the University in negotiating licenses for Inventions without the express written consent of the Vice President for Research or the President, except for those expressly assigned that authority.  Failure to comply with this policy may result in disciplinary action up to and including dismissal from employment at the University.

At any time during the processing of such Invention, the rights, title and/or interest of such Inventions may be assigned to a PMO. The Institution President, or designee, shall sign appropriate documentation acknowledging the assignment.  The PMO will assume obligations under section VI, as appropriate, and provide timely documentation to the Institution, if requested.

c.       An Invention may arise from the development of a new and useful process, device or apparatus, article of manufacture, composition of matter (including, but not limited to, chemical compounds, microorganisms, nucleotide sequence, amino acid sequence, genetically engineered organisms, and the like), plant, or related improvement, or a new use for a known material or device or related improvement, or a new use for a known material or device.  Any individual who is uncertain as to how to identify a potential Invention should contact the TTC Officer and request guidance.

d.      All rights to and interests in Inventions resulting from research or investigation conducted in the course of the Inventor’s employment with the Institution (including, but not limited to, the performance of a grant, contract or award made internally, by an extramural agency or by a third party) or with the use of the Institution’s resources shall be the sole and exclusive property of the Institution, or no other person or entity shall have rights of ownership or interest in such Inventions.  Any and all exceptions to this Policy shall be determined and approved by the VP for Research.  In all other cases, the Institution shall have the right of first refusal to the title of all Inventions derived with the use of Institution facilities, gifts, grants, or contract funds through the Institution. The Inventor shall provide all necessary declarations, assignments, or other documents as may be necessary in the course of processing the invention, patent prosecution, or protection of patent rights to assure that title in such Inventions shall be held by the Institution or other parties as may be appropriate under the circumstances.

e.       This Policy applies to all Inventions made by the Institution’s faculty, staff, students, trainees, volunteers or others if such Inventions are:

1.      the result of research performed by or under the direction of any faculty member, staff or student, the cost of which was partially or wholly paid for with funds under the control of or administered by the Institution and/or

2.      the result of an investigation by the faculty, staff, students, trainees, volunteers or others utilizing the Institution’s facilities, laboratories or other resources available to such faculty, staff, students, trainees, volunteers or others because of their status within the Institution.

f.        All Inventions conceived or actually or conceptually reduced to practice in the furtherance of research or investigation conducted by the Institution’s faculty, staff, students, trainees, volunteers or others in Paragraph VI(e) above, shall be promptly disclosed in writing to the TTC Officer.  The Invention Disclosure form provided by the TTC Officer should be used for the reporting process and may be obtained from the TTC Officer or completed in consultation with the TTC Officer.

g.       All rights to and interests in Inventions arising in the course of research or investigation sponsored by the Institution, any government or private agency or other sponsored research are controlled by the terms of the applicable Intellectual Property agreement, which must be reviewed, negotiated and approved by the the TTC Officer.  In the absence of provisions to the contrary contained in any such research or investigation agreement or under Federal law or regulations, the following shall apply:

1.      The Inventor has the right to:

i.         receive notice within six (6) months of the Institution’s intention to file a patent application or otherwise to retain title to the Inventions after the Invention Disclosure is made to the Institution of the Invention;

ii.         receive a share of any licensing fees or royalties received by the Institution from the commercialization of the Invention according to the Distribution Schedule contained in VI(j);

iii.       receive from the Institution title to any Invention subject to this Policy in the event the Institution elects not to retain title; and

iv.     timely publication of their research findings provided that a Invention Disclosure has been made.

2.      The Inventor is obligated to:

i.         promptly file an Invention Disclosure including the name of any collaborator;

ii.       assign title to the Invention to the Institution;

iii.      cooperate to the extent necessary as determined by the Institution in the reasonable delay of publication to allow for a timely submission of a patent application;

iv.     cooperate in prosecuting all patents applications and other required documents;

v.       participate in the defense of such patents during prosecution for interference or infringement; and

vi.     assist with licensing or marketing efforts related to the Invention.

3.      The Institution has the right to:

i.         assign to the Inventor title to any Invention, subject to this Policy, for which the Institution chooses not to retain title;

ii.       assign the rights or interests of any patented or unpatented Invention owned by the Institution to a PMO; or

iii.      make, use, license, sell or exchange rights to a third party the rights or interests of any patented or unpatented Invention owned by the Institution, and exclude others from doing so.

4.      The Institution is obligated to:

i.         make faculty, staff, students, trainees, volunteers or others aware of this Policy and of any ongoing agreements with external sources to evaluate and/or market such Inventions;

ii.       after the Invention Disclosure is filed, determine whether the Institution chooses to retain title and/or file a patent application and give notice of Institution’s intention and/or patent application to an Inventor within six (6) months after the Invention Disclosure is made;

iii.      expedite Intellectual Property protection; and

iv.     distribute Licensing Revenue received by the Institution for any Invention according to the Distribution Schedule contained in VI(j).

h.       In no instance, and regardless of ownership of the patent, may the Institution's name be used in connection with the marketing of the Invention without the express written permission of the Institution.

i.         The UND Chester Fritz Library Patent & Trademark Depository offers a preliminary review of active U.S. patents at no cost to Inventors. Principal investigators and/or Inventors are encouraged to use this resource in proposal preparation and early in a research program to document current patent coverage in an area of interest and as a way to identify potential Inventions.

j.        Subject to restrictions arising from obligations of the Institution pursuant to gifts, grants, contracts, or other agreements with outside organizations, the Institution agrees, for and in consideration of the assignment of Invention rights, to pay Cumulative Net Royalties according to the Distribution Schedule below.

 

                                    Distribution Schedule

Cumulative Net Royalties             Inventor         Unit         Institution/PMO

 

                  <$25,000                    50%           10%                 40%

      $25,000-$50,000                    45%           10%                 45%

                  >$50,000                    40%           10%                 50%

 

When there are two or more Inventors, each Inventor shall share equally in the Inventor's share of Cumulative Net Royalties, unless all Inventors have agreed in writing to a different distribution of such share. The Units’ share shall follow the Inventors’ distribution share of Cumulative Net Royalties.  The Vice President for Research will have final authority in resolving any dispute between Inventors as to the sharing of royalties between them.

k.      Cumulative Net Royalties received by the Institution and the Units must be used to support research, to further development of Intellectual Property, and/or to protect Institution’s Inventions.

l.         An Inventor voluntarily leaving the employment of the Institution for employment elsewhere will have the Cumulative Net Royalties due Inventor reduced by 75%, except in the event that the Inventor participates in the formation of a new business affiliated with the Institution using the Invention technology.

m.     The Inventor obligations under VI(g)(2) will not be terminated upon termination of employment from the Institution.

n.       Intellectual Property Protection Procedure.  The Office of Vice President for Research is responsible for the administration of this Intellectual Property Policy.  The TTC Officer is responsible for the administration of the Intellectual Property Protection Procedure, financial rights, negotiation and management of Invention records.  If an Invention is assigned to a PMO during the Intellectual Property Protection Procedure, the PMO shall be responsible for its administration and provide the Institution with the appropriate documentation if requested.  This Intellectual Property Protection Procedure serves as a guide to the Institution community in meeting the disclosure and reporting requirements of the Institution, North Dakota State Board of Higher Education and cooperating agencies.

1.      Intellectual Property and/or Invention Agreement Review.  Prior to executing any contract that binds the Institution or Inventor with regards to Intellectual Property, such contract will be submitted to the TTC Officer, who, with guidance from General Counsel, will ascertain that Intellectual Property clauses in sponsored projects are acceptable to the principal investigator and the Institution and are consistent with policies of the State Board of Higher Education, and if appropriate, to Federal law.  Such agreements include confidentiality, non-disclosure, material transaction, consulting and like agreements containing provisions for proprietary information and contractor, sponsored research or development, licensing or like agreements containing provisions for Intellectual Property.  The TTC Officer shall verify that the terms of a contract will not willfully or knowingly infringe on any background technology on which the Institution has previously secured a patent or on any proprietary agreement that the Institution may have with another party.

2.      Documentation and Tracking.  Inventors are responsible for recording and maintaining the discovery records of all potentially patentable discoveries derived through Institution activity.  Bound, dated, witnessed documentation is the encouraged method for maintaining such records.  Any questions regarding the proper method for maintaining records should be directed to the TTC Officer.

3.      Invention Disclosure.  An Inventor shall make a written description of the Invention to the TTC Officer at the earliest possible time after the creation of an Invention.  An Invention Disclosure should be made on a form provided by the TTC Officer or prepared in conjunction with the TTC Officer.   If the written description of the Invention Disclosure is adequate then the TTC Officer will assign an Institution document number.  The TTC Officer will have sole discretion to determine whether the Invention Disclosure is sufficient.  If not on file, the TTC Officer will request that Inventor signs an agreement with Institution to assign rights to Institution.  Upon making an Invention Disclosure, the TTC Officer will notify within a reasonable period of time, if necessary, the appropriate Federal agency providing grant support of the Invention Disclosure, in compliance with U.S. 37 CFR Part 401 and 35 U.S.C. 200-212.

4.      TTC Officer Evaluation. The TTC Officer will review each Invention before committing Institution or other funds in the pursuit of a patent covering the Invention, protection of the Invention as a Trade Secret, protection of the Invention under Copyright or any other form of protection of the Invention as Intellectual Property.  Such an evaluation should consider the all aspects of the Invention, prior art search and assessment, discovery’s gross market potential, potential licensees, financial return, obligation to sponsoring parties, and other factors impacting the investment of time and funds to complete the patent application process. The review may entail the commissioning of market, patentability or similar studies at the sole discretion of the TTC Officer.  Upon review, the TTC Officer will advance Invention Disclosure to the Invention Disclosure Committee for review, unless additional research or investigation is required towards patenting of Invention or determining sufficient value.  If latter, the Invention rights may be returned to Inventor.

5.      Invention Disclosure Committee Review.  The Invention Disclosure Committee will review, recommend filing or not filing, and prioritize, if necessary, the filing a patent application on the Invention.  Final approval will be signed by the VP for Research.

6.      Patent Application.  Upon approval by the Institution to pursue protection of the Invention, the TTC Officer will:

i.         notify, if necessary, the appropriate Federal agency of the Institution’s desire to retain title to the invention;

ii.       work with Inventor to file a U.S. patent application on the Invention; and

iii.      file a U.S. patent application either directly, with an external Intellectual Property firm or with a third party within the appropriate period.

7.      Documentation:  As necessary to protect the interests of the Inventor and the Institution, and as allowed by law, the records supporting Invention protection and appropriate documents with any commercialization organization will be maintained as confidential. The official Invention File shall the following items, if and when they are created, 

i.              Documentation identifying the sources of funds used to cover the costs.

ii.            The costs of Invention protection.  In the event that third Party pays for prosecution costs, said costs will be reduced accordingly.

iii.           Any obligatory contract or grant terms and conditions under which the discovery was conceived or developed.

iv.          Initial records of Invention (i.e. notebook references, drawings, sketches, etc.).

v.            Any formal records of Invention required by sponsors.

vi.          Invention Disclosure documents submitted by the Inventor(s).

vii.         Invention Disclosure documents submitted to a patent agent or attorney.

viii.       Inventor and Institution assignment agreements.

ix.          Documentation of the approval by the Invention Disclosure Committee and Vice  President for Research decision to proceed in securing a patent, the source(s) of funds used in covering the costs, and the patent attorney or other professional service involved in securing the patent.

x.            The patent agent’s / attorney’s findings and assessment from a preliminary patent search.

xi.          The final draft of a patent application as filed.

xii.         Any patent assignment.

xiii.       Any and all appropriate patent prosecution documents.

xiv.       A disbursement of funds agreement identifying financial returns to the Inventor,  Institution, and any patent development/commercialization entity.

xv.        The issued patent.

xvi.       Any licenses, equity positions, or other commercialization documents which determine financial returns to the Inventor and the Institution and its entities.

xvii.     Obligatory confirmatory licenses to any sponsor.

xviii.    Documentation of any abandonment of any patent by the Institution, any  agreements transferring title back to the Inventor or any obligatory transfer of title to the sponsor.

The Inventor shall be provided copies of each.

8.      Commercialization. Upon the decision to pursue commercialization of an Invention, the TTC Officer shall outline a commercialization plan in cooperation with the Inventor.  The commercialization plan should give careful consideration to steps that could be taken to protect the value of the Invention, including the appropriate use of confidentiality agreements, material transaction agreements and other Intellectual Property agreements.  A copy of this plan and annual progress reports shall be provided to the Inventor, the Institution, and any applicable cooperating agency. The principal elements of this plan shall be incorporated into any licensing agreement between the Institution and any commercialization organization.

9.      Patent and/or Intellectual Property Assignment and/or Licensing. The Institution authorizes the TTC Officer to establish a means of administering and managing the Institution’s Invention assets which (1) expedites their commercialization, (2) provides means for defense of a patent, (3) maintains the secrecy of Trade Secrets and (4) provides financial returns to the Inventor and the Institution. For non-PMO commercialization organizations, the TTC Officer will be responsible for reviewing with General Counsel, negotiating and approving all agreements with third parties relating to the assignment of Invention rights.  Either the TTC Officer, the Vice President for Research, or other designee, are authorized to sign licensing or like agreements on behalf on the Institution.

i.              The Institution may assign or transfer ownership rights in Inventions to a PMO at its sole discretion.  When appropriate, Institution and PMO will have confidentiality agreements in place.  If the Invention was supported directly or indirectly by a Federal agency applicable, prior to assignment the Institution will obtain documents showing that the Invention has been assigned to the Institution by the Inventor and the Institution has disclosed and elected to retain title to the Invention to the supporting.

ii.            It is the responsibility of employees and Units to provide the TTC Officer with any and all Intellectual Property agreements, which include consulting, confidentiality, MTA, licensing and research agreements, to ensure that the terms of the agreements with third parties do not conflict with their commitments to the Institution. Each employee shall make the nature of the employee’s obligations to the Institution clear to any third party for whom the employee expects to consult. Specifically, the scope of the consulting services must be distinguished from the scope of research commitments to the Institution.

10.  Licensing Revenue Collection and Cumulative Net Royalties Distribution.   Unless assigned to a PMO, the TTC Officer will be responsible for the collection of all Licensing Revenue and the payment of all fees under VI(j), as appropriate, upon approval by Institution General Counsel, and the distribution of Cumulative Net Royalties under VI(j) upon approval by the Vice President for Research. Documentation of the distribution of funds to the Inventor, Institution, any cooperating agencies, and other parties will be prepared by the TTC Officer or PMO, as appropriate, and signed by all parties.  A PMO will provide Institution a copy of such documentation if requested.

11.  Intellectual Property Documents. The TTC Officer shall maintain a permanent filing and storage system for all original Invention documents and any and all Intellectual Property agreements. A copy of the document should be provided to any cooperating agency and Inventor.

 

 

         VII.   General Trademark Policy

a.       Trademarks developed by faculty, students and staff of the Institution shall be treated in the same manner as Inventions.

Approved, University Senate, 5-04-06

 

5.3.3  Patents by Institutions of Higher Learning

All patents resulting from research sponsored by a state institution of higher learning and conducted by faculty officials or employees of a state institution of higher learning shall be assigned to the respective state institution of higher learning in accordance with a general policy established by each institution with the approval of the State Board of Higher Education. Ownership, control, management, and disposal of such inventions or discoveries by faculty, officials, or employees of each institution of higher learning shall be vested in each respective institution, or in an independent foundation at the respective institution.

North Dakota Century Code 47-28-01

Each faculty member, official, or employee of a state institution of higher learning who conceives any invention or makes any discovery as a result of research sponsored by the faculty member’s, official's, or employee's respective institution, and discharges any obligations to the institution is entitled to share in any net proceeds that may be derived from the assignment, grant, license or other disposal of invention or discovery. The amount of the net proceeds must be computed by or with the approval of the State Board of Higher Education, with reasonable promptness after collection thereof, and after deducting from gross proceeds the costs and expenses as may be reasonably allocated to the particular invention or discovery. The amount of the net proceeds paid to the faculty member, official, or employee of the institution must be determined by the institution as a general policy determination with the approval of the State Board of Higher Education. A minimum of thirty percent of the net proceeds must be paid to a faculty member, official, or employee of a state institution of higher learning who solely conceived or made the invention or discovery, and must be paid in shares of two or more faculty members, officials, or employees who jointly made the invention or discovery in such respective proportions as each institution may determine.

North Dakota Century Code 47-28-02

 

 5.3.4  UND Policy:  Patents

The University of North Dakota encourages the transfer of technology from the University to the private sector via appropriate commercialization strategies. Accordingly, all employees of the University who create patentable technologies (hereafter the Inventor(s) through the use of University facilities, time or materials assume obligations and rewards commensurate with this Procedure and the State Board of Higher Education policy (Art. 4.3.1). UND vests the principal responsibility for initiating, developing, commercializing, and administering patents with the University Inventor(s) and his/her respective College/School/Research/Service Agency (hereafter the "Administrative Unit").

Patentable University Innovations may be derived through university activities such as sponsored projects, internal University assignments, or personal design/development projects which utilize University resources. Funding may come from cooperating agencies such as federal and/or state government agencies or private/industrial sponsors, or the work may be performed with University resources or some combination thereof. In accordance with ND Century Code 47-28-01, all such inventions "shall inure to and be taken out by or assigned to the respective state institution of higher learning in accordance with a general policy established by each institution of higher learning with the approval of the state board of higher education."

Subject to overriding obligations of the institution pursuant to gifts, grants, contracts, or other agreements with cooperating agencies, the University of North Dakota encourages their Administrative Units to transfer University-derived patent rights to independent foundations (ND Century Code 47-28-01) or private sector entities in order to facilitate commercialization while protecting the rights of the Inventor.

Each Administrative Unit significantly engaged in patentable activities shall establish a management process for facilitating the patenting and commercialization of technologies. The University President, or designee, shall delegate the responsibility for facilitating the review and commercialization of those patents coming out of administrative units where no formal management process for patents has been established.

Two assistance organizations are available to facilitate the handling of patents and their commercialization. The Center for Innovation and Business Development (CIBD) is an independent not-for-profit North Dakota foundation offering technology commercialization services to both University and private parties. CIBD can assist in patent disclosure evaluations, market assessment, and commercialization strategy development. The University also has a non-exclusive contract for patent development services with Research Corporation Technologies (RCT) of Tucson , Arizona . RCT is available to University inventors and administrators as a technology brokerage and investment company. RCT will take on patent assignments from the University under a royalty-sharing agreement to facilitate commercialization of select technologies. RCT is active in the development of pharmaceuticals, materials, chemicals, and biotechnologies.

The Office of Research and Program Development (ORPD) serves as the University's contact for interpretation of University patent policy review procedure and records maintenance.

The following checklist shall serve as a guide to University Inventor(s) and Administrative Units in meeting the reporting requirements of cooperating agencies and the requirements of the North Dakota State Board of Higher Education Patent Policy. Each Administrative Unit shall maintain a permanent file referencing the pertinent steps of this process and shall be responsible for all background correspondence necessary to secure a patent and for its defense in a court of law.

1.Contract Review.  Prior to executing a contract award, the ORPD and the Administrative Unit shall ascertain that intellectual property clauses in sponsored projects are acceptable to the Principal Investigator(s), the Administrative Unit, the University and are consistent with policies of the State Board of Higher Education. The University's Principal Investigator and Administrative Unit shall verify that the terms of a contract will not willfully or knowingly infringe on any background technology on which the University has previously secured a patent or on any proprietary agreement which the University may have with another party.

2. University Patent Searches.  The UND Chester Fritz Patent & Trademark Depository Library offers a preliminary review of active U.S. patents at no cost to Inventors. Principal Investigators and/or Inventor(s) are encouraged to use this resource in proposal preparation and early in a research program to document current patent coverage in an area of interest.

3. Documentation and Tracking. University Inventor(s) are responsible for recording and maintaining the discovery records of all potentially patentable discoveries derived through University activity. Bound, dated, witnessed documentation is the encouraged procedure.

4. Enabling Disclosure. A University Inventor(s) shall make an "enabling disclosure" to the appropriate Administrative Unit at the earliest possible time after recognizing a potentially patentable discovery. Such a disclosure consists of 1) a description of the discovery, 2) citation of publications containing partial or complete descriptions, 3) an overview of the advantages of the discovery over other known competitive technologies, 4) identification of all individuals to which this discovery is known, 5) verification of the first documentation of the discovery, 6) the actual Inventor(s), and 7) a citation of any cooperating agencies funding the development of the discovery.

5. Internal Evaluation. The Administrative Unit shall review each discovery before committing University or other funds in the pursuit of a patent. Such an evaluation should consider the discovery's market potential, potential licensees, financial return, obligation to sponsoring parties, and other factors impacting the investment of time and funds to complete the patent application process. Subsequent to a decision to proceed with a patent application, (1) the official University patent file shall contain documentation identifying the source of funds used to cover the patenting costs; (2) the Administrative Unit shall notify the Office of Grants and Contracts of its intent to pursue a patent application, and (3) the Office of Grants and Contracts, or its designee, shall implement any obligatory patent filing notices to cooperating agencies.

6. Formal Patent Search. The Administrative Unit shall secure the necessary professional services to conduct and evaluate a formal parent search based on the "Enabling Disclosure."

7. Second Internal Evaluation. Upon receipt of a patent search evaluation, the Inventor(s) and the management of the Administrative Unit shall determine if additional funds will be committed to pursue a formal patent application. If at any time, the decision is made to halt the patent application process, ownership of the discovery shall revert to the Inventor via a letter of release of all University rights and obligations subject to any University obligations to a cooperating agency.

8. Patent Application.  The Administrative Unit shall track the process of the patent application and see that all necessary technical, assignment, and contractor acknowledgement information is provided to the patent attorney during the application and examination period by the Patent and Trademark Office. The office of Grants and Contracts, or its designee, shall provide a copy of the patent application to all pertinent cooperating agencies.

9. Patent Assignment. The University authorizes Administrative Units to establish a means of administering and managing patent assets which (1) expedites their commercialization, (2) provides means for defense of a patent, and (3) provides financial returns to the Inventor(s), the Administrative Unit, and the University. This may typically involve the assignment of patent titles to commercialization organizations such as independent foundations, private companies, and technology development corporations. The University President, or designee, shall sign appropriate documentation acknowledging the assignment of a University patent to another organization.

10. Fund Distribution Agreement. Documentation of the distribution of funds to the Inventor(s), Inventor(s) Department, Administrative Unit, University via President's Office or designee, any cooperating agencies, and other parties should be prepared and signed by all parties at the earliest possible time, typically at the time of a patent assignment or at the time the patent issues. The Inventor(s) shall receive no less than 30% of the net proceeds of an invention. (ND Century Code 47-28-02.)

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