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III. PERSONNEL INFORMATION |
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| NOTE: This is the March 1999 edition of the Faculty Handbook. Please be aware that many of the policies have changed or are out of date. A Senate Committee is currently working on an update. Any errors or discrepancies that you may find should be reported to the Office of the Vice President for Academic Affairs and Provost. | |
 III-1
NONDISCRIMINATION |
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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.
Page, Equal Opportunity Officer, 11-23-98
SEE ALSO: UND Faculty Handbook VII-4.4 (North Dakota Century Code 34-11.1 [Public Employees Relations Act]), VII-6.2 (Policy on Significant Infectious Diseases); 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, 01-20-94, Section 603.2
SEE ALSO: UND Faculty Handbook VII-4.1 (North Dakota Century Code 15-10-17(4) [Specific powers and duties of board of higher education]); UND Code of Student Life; UND Administrative Manual
1.1.2 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; and for classified personnel, to the Director of Personnel Services.)
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.
Ettling, Interim Vice President for Academic Affairs and Provost, 11-23-98; Page, Affirmative Action Officer, 11-23-98.
SEE ALSO: UND Faculty Handbook VII-4.1 (North Dakota Century Code, 15-10-17(4) [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.
1.1.3 REQUEST FOR ACCOMMODATION PROCESS
An employee with a disability who needs an accommodation in order to perform the essential functions of their 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. Forms are available from the Affirmative Action Office. Medical information may be needed to determine and identify 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.
Sally Page, Affirmative Action Officer, 8-22-00
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 individuals'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.
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.
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.
Page, Affirmative Action Officer, 11-23-98
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; and UND Code of Student Life
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 reasonable 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, creed, 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: African-American/Black, Hispanic/Latino, Asian/Pacific Islander, Native American/American Indian/Alaskan Eskimo or Aleut), 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.
Qualified disabled employment applicants or employees, both faculty and staff, may require reasonable accommodation to carry out their job functions. The disabled individual needs to be on record with the University that he or she is vocationally disabled. The faculty member 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 a resource library on current publications related to 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. The Affirmative Action Office will receive and keep on file resumes of individuals who are protected classes and who are looking for employment.
Those individuals who believe that they have been victims of unlawful discrimination are encouraged to contact the Affirmative Action Office. Grievance procedures and affirmative action/equal employment opportunity hiring procedures are available at the office and in the Administrative Manual.
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.
Page, Affirmative Action Officer, 12-14-98
SEE ALSO: UND Faculty Handbook III-12.3 (Equal Opportunity Grievance Procedure); UND Administrative Manual
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. It 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. It 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. It is recognized 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, martial 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, martial 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. Final 12/13/02)
III. REPORTING PROCEDURE AND DOCUMENTATION
All members of the University community are encouraged to report incidents of discrimination and harassment to University authorities. Incidents of discrimination or harassment may occur in a variety of situations and therefore reporting should be to the following offices:
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; and
K. Other administrative offices, centers (for example, Human Resources, Disability Support Services, Native American Programs, International Center, any Vice President’s Office, President’s Office), 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.
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, within 30 working days after the incident or act of discrimination or harassment occurs or promptly when the person has reasonable knowledge or belief of the discrimination or harassment. 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. Statements made by an individual in which anonymity or confidentiality is requested cannot be guaranteed, depending upon the nature of the complaint or allegations.
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 and their inability to maintain confidentiality of the conversation from administrators who represent a designated reporting office under the procedures.
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. Failure to sign a statement may impede the University’s ability to effectively resolve the complaint.
B. Investigation and Time Lines
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.
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.
Most fact-finding investigations and results should be concluded 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. 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 State Board of Higher Education 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 and appropriate administrative officers. An appeal to the Vice President completes the appeal process. No other appeal is available through the University.
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.
Notice 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, national origin, religious 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, 8930 Ward Parkway, Floor 2, Kansas City, MO 64114. (AAO/4-02)
 III-2
GRIEVANCES |
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2.1 STATE BOARD OF HIGHER EDUCATION GRIEVANCE PROCEDURE FOR FACULTY AND ACADEMIC STAFF
1. Each institution shall establish procedures to attempt mediation or resolution of faculty grievances.
2. "Grievance" means those actions or conditions defined in the institution¹s policy adopted pursuant to subsection 4 of this policy. It does not include matters related to dismissals, terminations, non-renewals or any other matter governed by sections 605.1 or 605.4.
3. This policy applies only to faculty as defined in Section 605.1 of these policies. It does not apply to classified staff or to administrators or coaches
4. The faculty governance structure at each institution shall by policy define the actions or conditions subject to grievance and procedures for filing a grievance in accordance with Section 305.1 of these policies.
State Board of Higher Education Policy Manual, 2-18-2000, Section 612
2.2 UND PROCEDURES TO IMPLEMENT THE STATE BOARD OF HIGHER EDUCATION FACULTY GRIEVANCE PROCEDURE
Persons to whom this section applies. This section applies to any person holding an academic staff appointment (see section II-8.1.1) at the University of North Dakota. It applies to a graduate teaching assistant only with respect to appointment as a teacher and not with respect to status as a graduate student.
Matters to which this section applies. This section applies to any procedural or substantive concern that a person to whom the section applies has with respect to terms or conditions of employment except scheduled departmental evaluation (see section II-8.1.1), nonrenewal (see section II-8.1.3), termination (see section II-8.1.3), or discrimination (see sections II-3.2 and III-2.1).
Options for resolving concern. If a person to whom this section applies has a concern, the person may attempt to resolve the concern by using any of the following:
1. negotiation, in which the person discusses the concern with any other person involved;
2. mediation, in which another party assists the person and any other person involved in resolving the concern; or
3. arbitration, in which the person files a grievance requesting the establishment of a Special Review Committee to evaluate the concern and, if appropriate, recommend a remedy.
Choice of options. The person who has a concern may attempt to use either negotiation or mediation, or both, before initiating arbitration. After arbitration has been initiated, negotiation and mediation are no longer appropriate, except in connection with the arbitration process.
1. Negotiation. In most instances, the person who has a concern should attempt to resolve it through negotiation by discussing the concern with any other person involved.
2. Mediation. The person who has a concern may initiate medication by requesting assistance from any person or entity designated to provide mediation within the administrative unit or the University. If the person or entity requested to mediate the concern is willing to do so, that mediator shall contact any other person involved and proceed with mediation if the other person is willing to do so.
3. Arbitration. Use the following process:
Steps in Arbitration Process*
Initiating process by filing grievance
1. After attempting to resolve concern through any departmental, college, or professional school procedures that exist, person with academic concern files written grievance with administrator of lowest appropriate unit.
2. Within 10 working days of receipt, administrator notifies any other person involved and begins efforts to resolve informally or by mediation.
3. If not resolved within 20 working days of receipt (or longer period, if grievant agrees), administrator requests University Senate chair to establish Special Review Committee.
4. Within 5 working days of request, University Senate Chair establishes SRC and designates chair.Review of grievance by Special Review Committee
5. Within 5 working days of SRC establishment, SRC chair notifies persons involved of opportunity to submit information within next 20 working days.
6. Within these 20 working days, SRC interviews persons involved.
7. Within 30 working days of SRC establishment, SRC provides written report of determination of merit and any recommendations.Review by president or designee
8. Within 20 working days of request (or longer period of no more than 20 additional working days, if grievant agrees), president of designee concurs, modifies, or rejects decision and notifies persons involved.
*At any point in process before final determination by president or designee, Special Review Committee shall refer any issue involving faculty rights to Standing Committee on Faculty Rights.1. Initiating process by filing grievance. The person who has a concern may, after attempting to resolve the concern through any departmental, college, or professional school procedures that exist, initiate arbitration by filing a written grievance with the administrator of the lowest appropriate unity. The written grievance must describe the concern and its effect on the person and indicate the remedy sought. The administrator who receives the grievance shall provide a copy of it to any person involved within 10 working days of the date of receipt. The administrator may attempt to resolve the grievance through informal discussion with the persons involved or by mediation within the administrative unit or the University. If the grievance is not resolved by the administrator within 20 working days of the date of receipt or a longer period agreed to by the grievant, the administrator shall request the chair of the University Senate to establish a Special Review Committee. The chair shall establish the Special Review Committee and designate its chair within 5 working days of receipt of the request from the administrator.
2. Review of grievance by Special Review Committee. Within 5 working days of establishment of a Special Review Committee, its chair shall notify the grievant and any other person involved that each may provide the Committee, within the next 20 working days, any additional written information concerning the grievance. Within this 20-day period, on or more members of the Committee designated by the chair shall attempt to interview the grievant and any other person involved. The Special Review Committee shall review the written grievance and any additional information received in writing or by interview. Within 30 working days of its establishment, the Committee shall provide a written report to the grievant, any other affected person, the administrator who receives the grievance, the chair of the University Senate, and the president of the University. In its report, the Committee shall determine whether or not the grievance is merited in whole or in part, and, if the grievance is merited, shall recommend to the appropriate administrator those steps necessary to remedy the grievance. The report must include findings supporting the Committee’s determination and any recommendations, and a copy of the report must be placed in the grievants, correspondence and contracts file (see section III-2.2).
3. Review by president or designee. Within 20 working days of receipt of the Special Review Committee’s report, or a longer period of no more than 20 additional working days agreed to by the grievant, the president or the president’s designee shall concur, modify, or reject the Committee’s determination and recommendations, if any. The president or designee shall provide a written statement of this action to the grievant, any other affected person, the administrator to whom remedial steps are recommended, the administrator who receives the grievance, and the chair of the University Senate, and shall have a copy of this statement placed in the grievant’s correspondence and contracts file.
4. Request for formal hearing by Standing Committee on Faculty Rights. At any point in the arbitration process before final determination by the president or designee, the Special Review Committee shall refer any issue involving faculty rights to the Standing Committee on Faculty Rights. If the Standing Committee on Faculty Rights determines that the issue referred by the Special Review Committee is an issue of faculty rights, the arbitration process is concluded with respect to that issue and the Standing Committee shall proceed in accordance with section II-8.1.10. The Special Review Committee shall continue the arbitration process with respect to any issue in a grievance which it does not seek to refer to the Standing Committee on Faculty Rights and any issue that it seeks to refer but which the Standing Committee determines is not an issue of faculty rights.
Deadlines. The deadlines established by this policy may be extended for good cause by the chair of the University Senate. For the purpose of determining the dates of deadlines, "working days" does not include Saturdays, Sundays, or official University holidays.
Approved, University Senate, 11-05-92
SEE ALSO: UND Faculty Handbook IV - 8.2 (Student Academic Grievances)
| 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 for Engineering and Mines, Fine Arts and Communication, 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.
Ettling, Interim Vice President for Academic Affairs and Provost, 12-31-98
SEE ALSO: UND Faculty Handbook VII-4.2 (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
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 nonevaluation 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 FILESI. 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:
- Full Name (last, first, middle)
- Social Security Number
- Date and Place of Birth
- Current Address and Phone
- Marital Status
- Highest Degree with Date and Institution
- Date of Initial Appointment
- Current Rank and Date Achieved
- Tenure Status (including any advance tenure credit)
- 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 Education4. 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).
Ettling, Interim Vice President for Academic Affairs and Provost, 12-31-98
SEE ALSO: UND Faculty Handbook VII-4.2 (North Dakota Century Code 15-38.2 [Teachers' Personnel Files]), VII-4.3 (North Dakota Century Code 54-06 [General Provisions, State Officers])
| III-4
OPEN GOVERNMENT REQUIREMENTS |
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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-4.5 (North Dakota Century Code 44-04-18 [Access to public records], 44-04-19 [Open governmental meetings], 44-04-21 [Open voting], 15-10-17(1) [Specific powers and duties of board of higher education])
4.1.1 OPEN MEETINGSAny 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.
Seaworth, 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, 10-01-87, 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 de termined 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, 01-15-81
5.1 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.
Ettling, Interim Vice President for Academic Affairs and Provost, 12-21-98
5.2.1 STATE BOARD OF HIGHER EDUCATION POLICY: CONSULTING PRACTICES
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
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, 01-15-81
5.2.3 MEDICAL SERVICE PLAN - UND MEDICAL SCHOOL
A. The Medical Service Plan of the University of North Dakota School of Medicine is formulated in keeping with the following purposes and principles:
The purposes of the plan are:
1. To aid the Medical School financially with income generated by full-time faculty physicians
2. To promote the growth of each department by income generated by full-time faculty physicians within that department
3. To 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
4. To provide participating physicians with financial rewards proportional and appropriate to their clinical endeavors
The principles are:
1. The major professional commitment of full-time faculty must be to the Medical School.
2. In their communities, the full-time faculty must not compete unfairly with private practitioners.
3. Except for the Student Health Center and except for the purpose of student postgraduate teaching in the Family Practice Centers, full-time faculty shall be discouraged from engaging in primary continuing patient care except as is necessary to maintain skills and to provide for effective teaching. Consultative and concurrent care is permitted.
B. The plan is applicable to all full-time faculty in clinical departments. The respective chairman of departments will decide which faculty are full-time and thereby obligated to participate in the plan.
C. The plan has no ceiling. Excessive amounts of time spent in clinical practice for financial reward are discouraged by the declining financial incentive.
D. The first obligation to the plan is to provide the financial support necessary to administer the plan (hereinafter referred to as overhead).
E. Aside from base salary, all professional income earned is subject to the schedule shown below. The figures represent net income after deduction of the Medical Service Plan overhead. Overhead expense is expected to be variable and must be adjusted to fit actual experience.
|
NET INCOME
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PERCENTAGE RETAINED BY PHYSICIAN
|
|
| First |
$5,000
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80%
|
| Second |
5,000
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70%
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| Third |
5,000
|
60%
|
| Fourth |
5,000
|
50%
|
| Fifth |
5,000
|
50%
|
| Sixth |
5,000
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40%
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| Seventh |
5,000
|
25%
|
| Above 7th |
5,000
|
25%
|
F. Funds retained by the Medical Service Plan are to be distributed as follows:
1. 75% to the appropriate department
2. 25% to the Medical School through the Dean's office
These funds are unencumbered and are available for discretionary use. Departmental use of funds generated by the plan is subject to review by the Medical Service Plan Committee, at the discretion of the committee.
G. Additional fringe benefits allocated by the Medical Service Plan Committee are to be deducted as part of the overhead expense. Departmental fringe benefits out of the Departmental allotment may be granted at the Departmental level without further obligations of the plan.
H. Monies earned from royalties, honoraria, publications, and non-clinical consultations are not subject to the Medical Service Plan. However, when such income is initiated while the earner is a member of the faculty and the total exceeds $2,500 per year for any year, the total amount for that year must be reported to the chairmen of the departments of which the physician is a member.
I. The private practice income of all full-time faculty who have entered into contractual financial arrangements for billing and collection with agents other than the plan is subject to review by the committee at least once a year. Except for plan fringe benefits of which the faculty member is a beneficiary; no overhead will be charged against such income, and the funds so generated will be distributed according to E and F of this section.
J. All full-time faculty in clinical departments must agree to participate in the plan and to follow its rules and regulations as a condition of new or continuing employment. Signed agreement is required in every case.
K. The plan is to be established as a nonprofit organization in a manner acceptable to and approved by IRS so that money can be transferred to departments and to the Medical School without taxation.
State Board of Higher Education Policy Manual, 11-05-82, Section 611.1
5.3.1 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 members'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
5.3.2 STATE BOARD OF HIGHER EDUCATION POLICY: PATENTS
A. The North Dakota Board of Higher Education encourages the faculty, staff, and others 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 overriding 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.
E. 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 (inventors') heirs, successors, or assigns, a minimum of 30% 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.
F. When there are two or more inventors, each inventor shall share equally in the inventors' 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.
G. In addition to the inventor's (inventors') share, the net royalties shall be dispersed 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.
State Board of Higher Education Policy Manual, 04-25-89, Section 611.2
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.)
11. The Patent Document. Each Administrative Unit shall maintain a permanent filing and storage system for the original patent document. A copy of the document should be provided to any cooperating agency and Inventor(s).
12. Commercialization. The Administrative Unit shall outline a commercialization plan in cooperation with the Inventor(s). A copy of this plan and annual progress reports shall be provided the Inventor(s), the University, and any applicable cooperating agency. The principal elements of this plan shall be incorporated into any commercialization agreement between the University of North Dakota and any commercialization organization.
Filing and Reporting Requirements
As necessary to protect the interests of the Inventor(s), the Administrative Unit, and the University, the records supporting a patent application and appropriate documents with any commercialization organization may be maintained confidential under ND Century Code 15-10-17 and the policy of the State Board of Higher Education. At the minimum, the official University patent file should contain copies of the following documents. The Inventor(s) shall be provided copies of each.
1. Any obligatory contract or grant terms and conditions under which the discovery was conceived or developed.
2. Initial records of invention (i.e. notebook references, drawings, sketches, etc.).
3. Any formal records of invention required by sponsors.
4. Disclosure documents submitted by the Inventor(s).
5. Disclosure documents submitted to a patent attorney.
6. Documentation of an Administrative Unit's decision to proceed in securing a patent, the source(s) of funds used in covering the costs, and the patent attorney or other professi
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