1445P2 Supplemental Title IX Employee Disciplinary Hearing (Procedures) 

Original Date: 9/28/21 (President’s Cabinet Temporary Approval – 9/19/23 – temporary approval expires on 03/19/24)          *    Last Revision Effective:

Policy Contact: Vice President of Human Resources; Vice President, Diversity, Equity, and Inclusion

PURPOSE 

The following procedures are established to meet the requirements for implementing policy 1445 – Title IX Sexual Harassment.

PROCEDURES 

Order of Precedence

This supplemental employee disciplinary procedure applies to allegations of sexual harassment subject to Title IX jurisdiction pursuant to regulations promulgated by the U.S. Department of Education. See 34 C.F.R. § 106. Disciplinary proceedings against an employee Responding Party reported to have engaged in sexual harassment in violation of Title IX shall be governed by Bellevue College’s administrative hearing practices and procedures, WAC Chapter 132H-108, and this supplemental hearing procedure. To the extent the supplemental hearing procedure conflicts with WAC 132H-108, and/or provisions set forth in employment contracts, collective bargaining agreements, employee handbooks, and other college employment policies and procedures, these supplemental hearing procedures will take precedence.

Notwithstanding the foregoing, if the Responding Party is a tenured or probationary faculty member and the Vice President of Human Resources determines that the allegations in the investigation, if true, would warrant the Responding Party’s dismissal from the college, the Vice President of Human Resources will refer the matter to the tenure dismissal committee for a hearing pursuant to RCW 28B.50.863 and applicable procedures set forth in the faculty union Collective Bargaining Agreement (CBA). To the extent the tenure dismissal procedures are inconsistent or conflict with this procedure, this procedure will prevail. At the end of the hearing, the tenure dismissal committee will issue a recommendation consistent with the provisions set forth in the section on Appeals. The Impacted Party shall have the same right to appear and participate in the proceedings as the Responding Party, including the right to present their position on the recommendation to the president before final action is taken.

Initiation of Discipline

1. Upon receiving the Title IX final investigation report from the Title IX Officer/Coordinator, the Employee Disciplinary Officer will independently review the report to determine whether there are sufficient grounds to pursue a disciplinary action against the Responding Party for engaging in prohibited conduct under Title IX.
2. Service of the disciplinary notice or any other document required to be served under this supplemental procedure may be done personally or by first class, registered, or certified mail, or by electronic mail to the party’s college issued email address.
3. If the Employee Disciplinary Officer determines that there are sufficient grounds to proceed under these supplemental procedures, the hearing facilitator will initiate a Title IX disciplinary proceeding by filing a written disciplinary notice with the Vice President of Human Resources (or designee) and by serving the notice to the Responding Party and the Impacted Party, and their respective advisors. The notice must:
   1. Set forth the basis for Title IX jurisdiction;
   2. Identify the reported Title IX violation(s);
   3. Set forth the facts underlying the reported behavior(s);
   4. Identify the range of possible sanctions that may be imposed if the Responding Party is found responsible for the reported violation(s);
   5. Explain that each party is entitled to be accompanied by an advisor of their own choosing during the hearing and that:
      1. Advisors will be responsible for questioning all witnesses on the party’s behalf;
      2. An advisor may be an attorney and/or, if the party is a represented employee, a union representative;

• A represented employee who chooses an advisor who is not a union representative must submit a signed waiver of union representation that includes consent from the union;

1. The college will appoint the party an advisor of the college’s choosing at no cost to the party, if the party fails to choose an advisor; and
2. Explain that if a party fails to appear at the hearing, a decision of responsibility may be made in the party’s absence.

Pre-hearing Procedure

1. Upon receiving the disciplinary notice, the hearing facilitator will serve a hearing notice to all parties. The hearing date may not be scheduled less than ten (10) days after the final investigation report is provided to the parties.
2. The college may, at its discretion, contract with a qualified person to act as the hearing facilitator.
3. In preparation for the hearing, the parties will have equal access to all relevant evidence gathered by the investigator during the investigation, regardless of whether the college intends to offer the evidence at the hearing, with the exception of privileged evidence wherein the privilege has not been waived.

Advisors

1. A party is entitled to be accompanied by an advisor during all aspects of the disciplinary procedure.
2. Parties are required to have an advisor at the Title IX hearing. Only an advisor is permitted to conduct cross examination during the Title IX hearing. (A party is not permitted to conduct cross examination.)  If a party does not choose an advisor, the Vice President of Human Resources (or designee) will appoint an advisor of the college’s choosing on the party’s behalf at no expense to the party.
3. Parties may choose their own advisor, at the party’s own expense. The advisor may be an attorney or, if the party is a represented employee, a union representative.
   1. If the advisor is an attorney, the advisor must file a notice of appearance with the hearing officer with copies to all parties and the Vice President of Human Resources at least five (5) days before the hearing. If a notice of appearance is not filed within this timeframe, the party will be deemed to have waived their right to have an attorney as an advisor.
   2. If a party is a represented employee who chooses not to use a union-provided advisor, the party must provide the Vice President of Human Resources (or designee) with a signed waiver of union representation, including written consent from the union.

Rights of Parties

1. The provisions of this supplemental procedure shall apply to all parties.
2. The college bears the burden of offering and presenting sufficient testimony and evidence to establish that the Responding Party is responsible for a Title IX violation by a preponderance of the evidence.
3. The Responding Party will be presumed not responsible for the reported misconduct unless or until such time as the disciplinary procedure has been finally resolved.
4. During the hearing, each party has a right to and is required to be represented by an advisor. The parties are entitled to an advisor of their own choosing and the advisor may be an attorney or, if the Responding Party holds a represented position, a union representative.

Evidence

The introduction and consideration of evidence during the hearing is subject to the following procedures and restrictions:

1. Question relevance: Prior to any question being asked, the hearing officer shall review all questions for relevance and shall explain on the record their reasons for excluding any question based on lack of relevance.
   1. Relevance means that information elicited by the question makes a fact in dispute more or less likely to be true.
   2. Questions or evidence about an Impacted Party’s sexual predisposition or prior sexual behavior are not relevant and must be excluded, unless such question or evidence:
      1. Is asked or offered to prove someone other than the Responding Party committed the reported misconduct; or
      2. Concerns specific incidents of prior sexual behavior between the Impacted Party and the Responding Party, which are asked or offered on the issue of consent.
   3. No negative inference: The decision-maker may not make an inference regarding responsibility solely on a witness or party’s absence from the hearing or refusal to answer questions.
   4. Privileged evidence: The decision-maker shall not consider legally privileged information unless the holder has effectively waived the privilege. Privileged information includes, but is not limited to, information protected by the following:
      1. Spousal/domestic partner privilege;
      2. Attorney-Client and attorney work product privileges;
      3. Privileges applicable to members of the clergy and priests;
      4. Privileges applicable to medical providers, mental health therapists, and counsellors;
      5. Privileges applicable to sexual assault and domestic violence advocates; and
      6. Other legal privileges identified in RCW 5.60.060

Initial Order

1. The hearing facilitator will be responsible for drafting an initial order that:
   1. Identifies the allegations of sexual harassment;
   2. Describes the grievance and disciplinary procedures, starting with filing of the formal complaint through the determination of responsibility, including notices to parties, interviews with witnesses and parties, site visits, methods used to gather evidence, and hearings held;
   3. Makes findings of fact supporting the determination of responsibility;
   4. Reaches conclusions as to whether the facts establish whether the Responding Party is responsible for engaging in sexual harassment in violation of Title IX;
   5. Contains a statement of, and rationale for, the committee’s determination of responsibility for each allegation;
   6. Describes any disciplinary sanction or conditions imposed against the Responding Party, if any;
   7. Describes to what extent, if any, Impacted Party is entitled to remedies designed to restore or preserve Impacted Party’s equal access to the college’s education programs or activities; and
   8. Describes the process for appealing the initial order to the college president.
2. The hearing facilitator will serve the initial order on the parties simultaneously.

Appeals

1. The parties have the right to appeal from the initial order and/or from a Title IX dismissal, in whole or part, of a formal complaint.
2. Appeals are limited to the following grounds:
   1. Procedural irregularity that affected the outcome of the matter;
   2. The discovery of new evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made and that could affect the outcome of the matter; and
   3. The Title IX Officer/Coordinator, investigator, decision-maker(s), or hearing facilitator had a conflict of interest or bias for or against Impacted Party(s) or Responding Party(s) generally or for or against the specific Impacted Party or Responding Party and the bias or conflict affected the outcome of the matter.
3. Any party may file an appeal within 21 days of the service of the initial order or notice of dismissal. The appeal must be filed in writing or electronically with the appeal decision-maker (AD) specified in the initial order.
   1. The AD will determine whether the grounds for appeal have merit and is timely, provide the rationale for this conclusion, and provide notification in writing to the parties.
   2. The AD will notify the Title IX Officer/Coordinator when an appeal is received. The AD will also notify the investigator, original decision–maker and/or hearing facilitator if they are accused of bias, conflict of interest or procedural irregularity.
   3. If a party files an appeal after the above time period, the AD will determine if the appeal may be accepted for extenuating circumstances.
   4. Within seven days after receiving the notice of appeal from the AD, the other party may submit a response to the appeal. Similarly, the Title IX Officer/Coordinator, investigator, and/or the decision–maker(s) or hearing facilitator may submit a response if the person filing the appeal has asserted that an impermissible source of bias or conflict of interest or if a procedural irregularity had an impact on the decision.
4. The AD will serve all responses to the appealing party and all other involved persons for review and comment. The appealing party may submit comments in reply to the AD within three days after receiving the responses.
5. The AD will determine whether the grounds for appeal have merit, provide the rationale for this conclusion, and state whether the decision, dismissal, and/or any disciplinary sanctions and conditions imposed in the initial order are affirmed, vacated, or amended, and, if amended, set forth the new disciplinary sanctions and conditions.
6. The AD shall serve the final decision on the parties simultaneously.
7. All decisions reached through this process are final. No decisions or recommendations arising from this disciplinary procedure will be subject to grievance pursuant to any collective bargaining agreement.

DEFINITIONS 

Appeal Officer (AO) is the college president, or designee identified to review and make a determination on appeals for determination of responsibility, and dismissal of a formal complaint or any allegations therein. The AD cannot be the same person as the decisionmaker(s) that reached the determination regarding responsibility or dismissal, the investigator(s), or the Title IX Officer/Coordinator.

Decision-Maker means the person or panel who hears evidence, determines relevance, and determines whether this Policy has been violated and/or assigns sanctions.

Hearing Facilitator refers to the person who facilitates a hearing in the formal complaint process and who determines whether evidence is relevant and whether a party or witness must answer questions asked on cross examination. The hearing facilitator may be, but need not be, the same person as the  decision-maker. The college may, at its discretion, contract with a qualified person to serve as a hearing facilitator.

Employee Disciplinary Officer is a college administrator designated by the Vice President of Human Resources (or designee) to be responsible for implementing and enforcing these supplemental Title IX employee disciplinary hearing procedures.

Service is the process by which a document is officially delivered to a party.

1. Unless otherwise provided, service upon a party shall be accomplished by either:
   1. Hand delivering the document to the party; or
   2. Sending the document by certified or first-class mail to the party’s last known address.
   3. Email delivery.
2. Service on a party is deemed complete on the date the document is hand-delivered to the party or, the date the document is emailed and/or deposited in the mail.

RELEVANT LAWS AND OTHER RESOURCES 

• BC Policy 1445, 1445P
• BC procedures 1440P
• BC Policy 1450
• Title IX of the Educational Amendments of 1972
• S. Department of Education’s Office for Civil Rights
• Bellevue College Association of Higher Education Collective Bargaining Agreement
• Washington Public Employees Association Higher Education Collective Bargaining Agreement
• Washington Federation of State Employees Higher Education Community College Coalition Collective Bargaining Agreement

REVISION HISTORY 

APPROVED BY 

President’s Cabinet (9/19/23 Temporary Approval – temporary approval expires on 03/19/24)

Last Updated October 23, 2023