- These procedures may be applicable in cases involving:
- Suspension of employees for cause, or termination of employees when the termination
is in violation of the employee’s contract, e.g. termination prior to the expiration
of the contract term:
- Suspension or expulsion of a student, or revocation of recognition of a student organization,
for misconduct or disciplinary reasons;
- Support staff employees who are demoted, suspended without pay, or terminated and
elect to pursue a UAPA hearing instead of an employee panel as the final step of the
grievance process; and
- Such other cases as may be designated by the president of Austin Peay State University.
- These procedures are not applicable to termination of faculty for adequate case which
are subject to the provision of T.C.A. 49-8-302.
- Prior to the initiation of any hearing pursuant to these procedures, the university
shall seek the advice of the university attorney on the applicability of the procedures
and for possible assistance in the hearing of the case.
Authority of the President
- The president is responsible for the implementation of these procedures, and has the
final decision making authority in proceeding subject to these procedures.
- The authority and responsibilities of the president set forth herein may be delegated
by him or her to individual designees who are members of the staff of the university.
- All references herein to the president include any designee of the president.
- The president shall be responsible for any action taken under a delegation of his
or her authority.
- The president shall designate a member of the staff to be responsible for the coordination
and administration of these procedures, who shall hereinafter be referred to as the
“director” but who may be given any appropriate title as determined by the president.
- The president may designate as many assistants to the “director: as may be necessary
to implement these procedures, and may authorize each assistant to exercise the same
rules and responsibilities as the “director”.
- The ‘director’ shall investigate all cases which may be subject to these procedures,
and may recommend to the president whether a hearing shall be commenced in any case.
- In all cases which proceed to a hearing under these procedures, the ‘director’ shall
be responsible for notifying the university attorney, initiating the hearing procedures
sending all appropriate notices, making all arrangements for the hearing and marshaling
and presenting evidence at the hearing except in cases where the university will be
represented by outside counsel or any other designated person.
- The “director” shall provide with a copy of these procedures.
Selection of a Hearing
Officer or Hearing
- In any case where a hearing pursuant to these procedures is required, the president
or director shall determine, in his or her discretion, whether the hearing shall be
held before a hearing officer or a hearing committee.
- Hearing Officers
- Hearing officers shall normally be appointed by the president or director from the
administrative or professional staff of the university.
- Contested cases may also be conducted by an administrative judge from the Administrative
Procedures Division of the Office of Secretary of State.
- The university may submit a request for an administrative judge to the Office of General
- Hearing Committee
- A hearing committee may be appointed by the president or director from the administrative,
professional staff and/or appropriate employees or student at the university.
- The person appointed as chairperson of the committee shall be deemed to be the hearing
officer for purposes of presiding at the hearing.
- A “director” may not be appointed to serve as a hearing officer.
- Whenever practicable the “director” should hold a preliminary conference with the
person involved and advise him or her orally in his or her presence of the reason
for the proposed action.
- If the action to be taken is such that these procedures are or maybe applicable; the
person shall be advised of the opportunity to elect the procedures pursuant to which
a hearing will be provided as hereinafter set forth.
- As a result of any preliminary conference, any person who may otherwise be entitled
to a hearing pursuant to the act may waive such a hearing and accept the decision
proposed by the university.
- A waiver may be made verbally or in writing, and if made in writing, it should be
signed by the employee and shall state the matter involved and the decision acquiesced
in, and should expressly state that the procedures for contacted cases under the act
are knowingly and voluntarily waived by the person.
- Following a preliminary conference, or prior to commencement of any hearing under
these procedures where any issues of fact or cause and effect are contested by the
person, he or she shall be advised of hearing procedures available under the Act and
of the established university procedures available for resolution of the matter in
question, and shall be given the opportunity to elect the procedures pursuant to which
the matter will be heard.
- Where the person elects to proceed under the established university procedures for
the resolution of the matter, the election should be in writing and signed by the
person, and should expressly waive the procedures available under the Act as to the
matter in question.
Suspensions Pending a Hearing
- A student or employee charged with violations of policies, rules or regulations of
the university may be suspended by the president or director pending a hearing subject
to thee or alternate procedures when the person’s presence poses a danger to person
or property or a threat of destruction to the academic or operational processes of
- In any case of immediate suspension, the person shall be given an opportunity at the
time of the decision or immediately thereafter to contest the suspension, and if there
are disputed issues of fact or cause and effect, the person shall be provided a hearing
on the suspension as soon as possible at which the person may cross-examine his or
her accuser, present witnesses on his or her behalf, and be represented by an attorney.
- Thereafter, whether the suspension is upheld or revoked, the case shall proceed pursuant
to the procedures.
Notice of Hearing and Response
- Prior to the hearing all parties shall be afforded reasonable notice.
- This notice shall include:
- A statement of the time, place, nature of the hearing, and the right to be represented
- A statement of the legal authority and jurisdiction under which the hearing is being
held, including a reference to the particular sections of the statute or rules involved:
- A short and plain statement of the matters asserted.
- If the university or other party is unable to state the matters in detail at the time
the notice is served, the initial notice may be limited to a statement of the issues
- Thereafter, upon timely notification a more definite and detailed statement shall
be furnished ten (10) days prior to the time set for the hearing.
- The party charged shall respond in writing within five (5) days (excluding Saturdays
and Sundays) of the service of the notice of hearing which response may generally
admit or deny all allegations, or may admit in part and deny in part the allegations
made in the notice, and may set forth relevant issues of fact.
- If the party fails to respond he or she will be subject to the default provisions
found in the Default Section below.
- If the party charged elects to be represented by an attorney at the hearing, the response
must so indicate in writing and the name and office address of the attorney must be
- Failure to provide written notice of the name and address of counsel in the response
may result in the continuance of the hearing, if requested by the director.
Time for Hearings
- Hearings shall normally be held within twenty (20) calendar days of the date of the
notice of hearing.
- Extensions of time may be granted upon motion by either party in the event pre-hearing
discovery will not be completed by the designated time of the hearing, provided that
the parties have proceeded with discovery with due diligence.
- Other than as required for the convenience of the hearing officer, extensions of time
for hearings for reasons other than discovery shall be authorized only for good and
- In any case for hearing the hearing officer assigned to hear the case upon their own
motion or upon the motion of the one parties or their authorized representative, may
direct the parties and/or the attorneys for the parties to appear before him or her
for a pre-hearing conference.
- During thepre-hearing conference, the parties will consider the following:
- The simplification of issues:
- The necessity or desirability of amendments to the pleadings;
- The possibility of obtaining admissions of fact and of documents which will avoid
- The limitation of the number of witnesses;
- Such other matters as may aid in the disposition of the case.
- The hearing officer shall make an order which recites the action taken at the conference,
the amendments allowed to the pleadings, and the agreement made by the parties as
to any of the matters considered, and which limits the issues for hearing to these
not disposed of by admissions or agreement of the parties, and such order when entered
controls the subsequent course of the actions, unless modified at the hearing to prevent
- Upon reasonable notice to all parties the hearing officer may convene a hearing or
convert a pre-hearing conference to a hearing, to be conducted by the hearing officer
sitting along, to consider argument and/or evidence on any question of law.
- If, a pre-hearing conference is not held, the hearing officer may issue a pre-hearing
order, based on the pleadings, to regulate the conduct of the proceedings.
Procedure in Preparation
- Subpoenas and Discovery
- The hearing officer, at the request of any party shall issue subpoenas, effect discovery,
and issue protective orders. The hearing officer shall decide any objection relating
to discovery under these rules or the Tennessee Rules of Civil Procedure. Witnesses
under subpoena shall be entitled to the same fees as are not or may hereafter be provided
for witnesses in civil actions in the circuit court and, unless otherwise provided
by law or by action of the university, the party requesting the subpoenas shall bear
the cost of paying fees to the witnesses subpoenaed.
- All requests for subpoenas and all depositions and interrogatories shall be limited
to matters which are not privileged and which are relevant to the proceeding. Upon
motion by a party or by a person from whim discovery is sought, and for good cause
shown, the hearing officer may enter any order which justice requires to protect
a person or party from annoyance, embarrassment, oppression, or undue burden or expense,
including one or more of the following: (I) that the discovery not be had; (II) that
the discovery may be had only on specified terms and conditions; (II) that the discovery
may be had only by an alternative method; (IV) that the scope of discovery be limited
to certain matters; or (V) that information be submitted under seal to be opened only
by orders of the hearing officer.
- Depositions and Interrogatories
- Any party to the proceeding may take depositions of parties or witnesses or may serve
interrogatories upon any party, within or without the state, in the same manner as
provided by law for the taking of depositions and interrogatories in a civil action.
- Any party to the proceeding may serve upon any other party a written request for the
admission by the other of the genuineness of any relevant documents described in and
exhibited to the request of the truth of any relevant matters of fact set forth in
- Each of the matters of which an admission is requested shall be deemed admitted unless
within a period designed in the request, not less than thirty (30) calendar days after
service thereof, or within such shorter or longer time as the hearing officer may
allow on motion and notice, the party to whom the request is directed serves upon
the party requesting the admission either;
- A sworn statement denying specifically the matters of which an admission is requested
or setting forth in detail the reasons why he or she cannot truthfully admit or deny
those matters or,
- Written objections on the ground that some or all of the requested admissions are
privileged or irrelevant or that the request is otherwise improper in whole or in
part, together with a notice of hearing the objections at the earliest practicable
time. If written objections to a part of the request are made, the remainder of the
request shall be answered.
- Review of University Files
- Any party to a contested case shall have the right to inspect the files of the university
with respect to the matter and to copy there from, except that records may not be
inspected the confidentiality of the which is protected by law.
- The university shall admit and give probative effect to evidence admissible in a court
and when necessary to ascertain facts not reasonably susceptible proof under the rules
of court, evidence not admissible there under may be admitted if it is of a type commonly
relied upon by reasonably prudent men in the conduct of their affairs.
- The university shall give effect to the rules of privilege recognized by law and to
Board of Trustees rules the protecting the confidentiality of certain records and
shall exclude evidence which in its judgment is irrelevant, immaterial, or unduly
- At any time not less than ten (10) days prior to a hearing or continued hearing, any
party shall deliver to the opposing party a copy of any affidavit which he proposes
to introduce in evidence, together with a notice in the form provided in subdivision
H, which follows.
- Unless the opposing party within seven (7) days after delivery, delivers to the proponent
a request to cross-examine an affiant, his right to cross-examination of such affiant
is waived and the affidavit, if introduced in evidence, shall be given the same effect
as if the affiant had testified orally.
- If an opportunity to cross-examine an affiant is not afforded after a proper request
is made as herein provided, the affidavit shall not be admitted into evidence.
- Delivery for purposes of this section shall mean actual receipt.
- The hearing officer may admit affidavits not submitted in accordance with this section
where necessary to prevent injustice.
- The notice referred to in subdivision C. shall contain the following information and
be substantially in the following form:
- The accompanying affidavit of (here insert name of affiant) will be introduced as
evidence at the hearing in (here insert title of proceeding). (Here insert name of
affiant) will not be called to testify orally and you will not be entitled to question
him unless you notify (here insert name of the proponent or his attorney) at (here
insert address) that you wish to cross-examine him. To be effective your request must
be mailed or delivered to (here insert name of proponent or his attorney) on or before
(here insert a date seven (7) days after the date of mailing or delivering the affidavit
to the opposing party).
- Documentary evidence otherwise admissible may be received in the form of copies or
excerpts, or by incorporation by reference to material already on file with the agency.
Upon request, parties shall be given an opportunity to compare the copy with the original,
if reasonably available.
- Official notice may be taken of:
- Any fact that could be judicially introduced in the courts of this state;
- The record of other proceedings before the agency;
- Technical or scientific matters within the university’s specialized knowledge; and
- Codes of standards that have been adopted by an agency of the United States, of this
state or any other state, or by nationally recognized organization or association.
- Parties must be notified before or during the hearing, or before the issuance of any
initial or final order that is based in whole or in part on facts or material noticed,
of the specific facts or material noticed and the source thereof, including any staff
memoranda and data, and be afforded an opportunity to contest and rebut the facts
or material so noticed.
Pleadings, Briefs, Motions Service
- The hearing officer, at appropriate stages of the proceedings, shall give all parties
full opportunity to file pleadings, motions, objections and offers of settlement.
- The hearing officer, at appropriate stages of the proceedings, may give all parties
full opportunity to file briefs, proposed findings of fact and conclusions of law,
and proposed initial or final orders.
- A party shall serve copies of any filed item on all parties, by mail or any other
means prescribed by the institution.
- If a party fails to attend or participate in a pre-hearing conference, hearing or
other stage of a hearing, the hearing officer, hearing the case alone or with committee
may hold the party in default and either adjourn the proceedings or conduct them without
the participation of that party, having due regard for the interest of justice and
the orderly and prompt conduct of the proceedings.
- If the proceedings are conducted without the participation of the party in default
the hearing officer, hearing the case alone shall include in the final order a written
notice of default, otherwise, the Committee sitting with the hearing officer, shall
include such written notice of default in the final order.
- If the proceedings are adjourned and not conducted the hearing officer, hearing the
case alone, may render an initial default order, otherwise the Committee sitting with
the hearing officer, may render a final default order.
- All default orders and notices of default in default orders shall include a written
statement of the grounds for the default.
- A party may petition to have a default set aside by filing timely petition for reconsideration.
- If a party fails to file a timely petition for reconsideration or the petition is
not granted, the hearing officer, sitting alone, or the Committee sitting with the
hearing officer, shall conduct any further proceedings necessary to complete the contested
case without the participation of the defaulting party and shall determine all issues
in the adjudication, including those affecting the defaulting party.
- The hearing officer shall grant one or more petitions for intervention if:
- The petition is submitted in writing to the hearing officer, with copies mailed to
all parties named in the notice of the hearing, at least seven (7) days before the
- The petition states facts demonstrating that the petitioner's legal right, duties,
privileges, immunities, or other legal interest may be determined in the proceeding
or that the petitioner qualifies as an intervenor under any provision of law; and
- The hearing officer determines that the interests of justice and the orderly and prompt
conduct of the proceedings shall not be impaired by allowing the intervention.
- The Committee may grant one or more petitions for intervention at any time, upon determining
that the intervention sought is in the interest of justice and shall not impair the
orderly and prompt conduct of the proceedings.
- If a petitioner qualifies for intervention, the hearing officer may impose conditions
upon the intervenor's participation in the proceedings, either at the time that intervention
is granted or at any subsequent time.
- The hearing officer or Committee, at least twenty-four (24) hours before the hearing,
shall render an order granting or denying each pending petition for intervention,
specifying any conditions, and briefly stating the reasons for the order.
- The hearing officer or Committee may modify the order at any time, stating the reasons
for the modification.
- The hearing officer or Committee shall promptly give notice of an order granting,
denying, or modifying intervention to the petitioner for intervention and to all parties.
Disqualification and Substitution Hearing
Officers and Committee Members
- Any hearing officer or Committee member shall be subject to disqualification for bias,
prejudice, interest, or any other cause provided in this policy or for any cause for
which a judge may be disqualified.
- Any party may petition for the disqualification of hearing officer or a Committee
member promptly after receipt of notice indicating that the individual may serve or,
if later, promptly upon discovering facts establishing grounds for disqualification.
- A party petitioning for the disqualification of an individual shall not be allowed
to question the individual concerning the grounds for disqualification at the hearing
or by deposition unless ordered by the hearing officer conducting the hearing and
agreed to by the individual.
- The individual whose disqualification is requested shall determine whether to grant
the petition, stating facts and reasons for the determination.
- If a substitute is required for an individual who becomes unavailable as a result
of disqualification or any other reason, the substitute shall be appointed by the
- Any action taken by a duly appointed substitute for an unavailable individual shall
be as effective as if taken by the unavailable individual.
Separation of Functions
- A person who has served as an investigator, prosecutor or advocate in a case may not
serve as a hearing officer or assist or advise a hearing officer in the same proceeding.
- A person who is subject to the authority, direction, or discretion of one who has
served as investigator, prosecutor, or advocate in a contested case may not serve
as a hearing officer or assist or advise a hearing officer in the same proceeding.
- A person who has participated in a determination of probable cause or other equivalent
preliminary determination in a case may not serve as a hearing officer or assist or
advise a hearing officer in the same proceeding.
- A person may serve as a hearing officer at successive stages of the same case, unless
a party demonstrates grounds for disqualification.
- A person who has participated in a determination of probable cause or other equivalent
preliminary determination or participated or made a decision which is on administrative
appeal in a contested case may serve as a Committee member in the case where authorized
by law and not subject to the disqualification or other cause provided in this chapter.
Ex parte Communications
- Unless required for the disposition of ex parte matters specifically authorized by
statute a hearing officer or Committee member serving in a case proceeding may not
communicate, directly or indirectly, regarding any issue in the proceeding, while
the proceeding is pending, with any person without notice and opportunity for all
parties to participate in the communication.
- Notwithstanding subsection A., a hearing officer or representative may communicate
with: other university employees regarding a pending matter or may receive aid from
staff assistants, university attorney, if such persons do not receive ex parte communications
of a type that the hearing officer or institution representative would be prohibited
from receiving; and do not furnish, augment, diminish or modify the evidence in the
- Unless required for the disposition of ex parte matters specifically authorized by
statute, no party to a contested case, and no other person may communicate, directly
or indirectly, in connection with any issue in that proceeding, while the proceeding
is pending, with any person serving as a hearing officer or Committee member without
notice and opportunity for all parties to participate in the communication.
- If, before serving as a hearing officer or Committee member in a case, a person receives
an ex parte communication of a type that may not properly be received while serving,
the person, promptly after starting to serve, shall disclose the communication in
the manner prescribed in subsection E. which follows.
- A judge, hearing officer, or Committee member who receives an ex parte communication
in violation of this section shall place on the record of the pending matter all written
communications received, all written responses to the communications, and a memorandum
stating the substance of all oral communications received, all responses made, and
the identity of each person from whom the person received an ex parte communication,
and advise all parties that these matters have been placed on the record.
- Any party desiring to rebut the ex parte communication shall be allowed to do so,
upon requesting the opportunity for rebuttal within ten (10) days after notice of
- A hearing officer or Committee member who receives an ex parte communication in violation
of this section may be disqualified as previously outlined.
- The university shall, and any party may, report any willful violation of this section
to appropriate authorities for any disciplinary proceedings provided by law.
Representation at the
- Any party may participate in the hearing in person, or if the party is an organization
by a duly authorized representative.
- Whether or not participating in person, any party may be advised and represented at
the party's own expense by counsel, or unless prohibited by any provision of law,
Conduct of the Hearing
- In the hearing of any case the proceedings or any part thereof:
- Shall be conducted in the presence of the requisite number of members of the university
and in the presence of a hearing officer; or
- Shall be conducted by a hearing officer sitting alone.
- It shall be the duty of the hearing officer to preside at the hearing, rule on questions
of the admissibility of evidence, swear witnesses, advise the Committee members as
to the law of the case, and ensure that the proceedings are carried out in accordance
with the applicable law and the rules.
- A hearing officer shall, upon his own motion, or timely motion of a party, decide
any procedural question of law.
- The hearing officer shall regulate the course of the proceedings, in conformity with
the pre-hearing order, if any.
- Where more than one party is charged with offenses arising out of a single occurrence
or out of multiple connected occurrences, a consolidated hearing will be held for
all parties charged; provided that upon timely motion and for good cause shown the
officer may in his or her discretion grant a separate hearing for any party or parties.
- A tape recording but not a transcription will be made of the hearing. The party charged
may request that the recording be transcribed at his or her own expense, or the recording
may be transcribed by the institution, in which case any party shall be provided copies
upon payment of a reasonable compensatory fee.
- No tape recording by the party charged or by other persons at the hearing will be
permitted, but the party charged, at his or her own expense, may furnish a certified
court reporter provided that a copy of the transcript is promptly furnished to the
director at no cost.
- The hearing shall be open to public observation pursuant to the provisions of T.C.A.
§ 8-44-101 et seq.
- The university renders an order in each case.
- The order shall be rendered in writing within ninety (90) days after conclusion of
the hearing or after submission to proposed findings unless such period is waived
or extended with the written consent of all parties or for good cause shown.
- If an order is adverse to the party charged it shall in addition to being in writing,
include findings of fact, conclusions of law, and reasons for the ultimate decision.
- Findings of fact shall be based exclusively on the evidence and on matters officially
- Parties shall be notified in writing either personally or by mail of the decision
and such notice shall include a statement of the party's right to judicial review.
- A copy of the decision shall be delivered or mailed forthwith to each party or to
his or her attorney of record.
- The order made either by the hearing officer (or committee by majority vote) may be
reviewed by the president or director, in the discretion of the president.
- If the decision is reviewed by the president or director based upon the findings of
the hearing officer (or committee), a final decision will not be made until the president
or director has reviewed the entire record of the proceeding.
Review of Order
- A petition for appeal from an initial order shall be filed with the institution or
with any person designated for such purpose by rule of the university, within ten
(10) days after entry of the initial order.
- The ten-day period for a party to file a petition for appeal or for the president
or director to give notice of its intention to review an initial order on his/her
own motion shall be tolled by the submission of a timely petition for reconsideration
of the initial order and a new ten-day period shall start to run upon disposition
of the petition for reconsideration.
- If an initial order is subject both to a timely petition for reconsideration and to
a petition for appeal or to review by the university on its own motion, the petition
for reconsideration shall be disposed of first, unless the institution or college
determines that action on the petition for reconsideration has been unreasonably delayed.
- The petition for appeal shall state its basis.
- If the president or director on its own motion gives notice of its intent to review
an initial order, the president or director shall identify the issues that it intends
- The person reviewing an initial order shall exercise all the decision-making power
that the president or director would have had to render a final order had the president
or director presided over the hearing, except to the extent that the issue subject
to review are limited by rule or statute or by university policies upon notice to
- The president or director shall afford each party an opportunity to present briefs
and may afford each party an opportunity to present oral argument.
- A final order or an order remanding the matter for further proceedings pursuant to
this section, shall be rendered and entered in writing within sixty (60) days after
receipt of any briefs and oral argument, unless the period is waived or extended with
the written consent of all parties or for good cause shown.
- The university will deliver copies of the final order or order remanding the matter
for further proceedings to each party and to the hearing officer who conducted the
- A party may submit to the university a petition for stay of effectiveness of an initial
or final order within seven (7) days after its entry unless otherwise provided by
statute or stated in the initial or final order.
- The president or director may take action on the petition for stay, either before
or after the effective date of the initial or final order.
Effectiveness of New
- Unless a later date is stated in an initial or final order, or a stay is granted,
an initial or final order shall become effective upon entry of the initial or final
- All initial and final orders shall state when the order is entered and effective.
- If the university has utilized an administrative judge from the Administrative Procedures
Division of the Office of the Secretary of State, the initial or final order shall
not be deemed entered until the order has been filed with the Administrative Procedures
- The president shall designate which officials or employees may sign final orders.
- A party may not be required to comply with a final order unless the final order has
been mailed to the last known address of the party or unless the party has actual
knowledge of the final order.
- A nonparty may not be required to comply with a final order unless the institution
has made the final order available for public inspection and copying or unless the
nonparty has actual knowledge of the final order.
- This section shall not preclude any president or director from taking immediate action
to protect the public interest.
- The university shall maintain an official record of each case under this policy. The
record shall be maintained for a period of time not less than three (3) years.
- This record shall consist of:
- Notice of all proceedings;
- Any pre-hearing order;
- Any motions, pleadings, briefs, petitions, requests, and intermediate rulings;
- Evidence received or considered;
- A statement of matters officially noticed;
- Offers of proof and objections and rulings thereon;
- Proposed findings, requested orders, and exceptions;
- The tape recording, stenographic notes or symbols, or transcript of the hearing;
- Any final order, initial order, or order on reconsideration;
- Staff memoranda or data submitted to the institution or college unless prepared and
submitted by personal assistants;
- Matters placed on the record after an ex parte communication.
- A record (which may consist of a tape or similar electronic recording) shall be made
of all oral proceedings.
- Such record or any part thereof shall be transcribed on request of any party at his
expense or may be transcribed by the institution at its expense.
- If the university elects to transcribe the proceedings, any party shall be provided
copies of the transcript upon payment to the institution of a reasonable compensatory
- Except to the extent that this chapter or another statute provides otherwise, the
university's record shall constitute the exclusive basis for university action in
adjudicative proceedings under this policy, and for judicial review thereof.
- A person who is aggrieved by a final decision in a contested case is entitled to judicial