I. Purpose. This Procedure is adopted to implement the Non-Discrimination Policy (“Policy”). This Procedure applies only to alleged incidents that occur after the effective date of this Procedure.
II. Scope and Applicability. This Procedure applies to all Employee, Students, and other individuals participating in or attempting to participate in the College’s program or activities, including education and employment, who are participation in the Resolving Allegations of Discrimination and Retaliation Procedure (“Procedure”).
III. Definitions
A. All capitalized terms in these Procedures have the meanings provided in the Policy and Resolving Allegations of Discrimination and Retaliation Procedure.
B. All other capitalized terms in these Procedures have the following meanings:
1. Hearing Officer means the individual appointed to conduct a hearing.
IV. Procedure Provisions. The following provisions apply to a live hearing.
A. Appointment of Hearing Officer
1. The CCFPO or designee will appoint a Hearing Officer from the Resolution Process Pool.
2. Exceptions
a. The CCFPO may, in any case, appoint an individual external to the College to serve as a Hearing Officer.
b. If the Respondent is the President, the Board of Trustees will appoint a Hearing Officer.
c. If the Respondent is the CCFPO, the Executive Director of HR or designee will appoint the Hearing Officer.
B. Conflicts of Interest or Bias
1. The Hearing Officer must not have a bias for or against complainants or respondents generally or the individual Complainant or Respondent in particular.
2. The Hearing Officer must recuse themself if such bias or conflict of interest exists.
3. If the Hearing Officer believes there is possible conflict of interest or bias, they will consult with the Administrator about possible recusal or removal.
4. The Parties may raise challenges that the Hearing Officer is biased or has a conflict of interest. The Parties must raise challenges with the Administrator within two (2) Business Days of receiving the hearing notice.
5. The CCFPO will only remove and replace a Hearing Officer in situations of demonstrated bias or conflicts of interest. Perceptions of bias or conflict are not sufficient to cause removal.
6. If a Hearing Officer recuses themself as the result of a conflict of interest or bias, or is removed, the CCFPO will promptly appoint a new Hearing Officer who does not have a conflict of interest or bias and notify the Parties accordingly.
C. Hearing Venue Options and Recordings
1. The live hearing may occur in person or via video technology. The Hearing Officer and Parties must be able to simultaneously see and hear a party or witness while that person is speaking. Both options are considered fair and equitable. Alternative arrangements may also be made at the CCFPO’s discretion.
2. The Parties may make a request to the CCFPO that the hearing occur in person or via video technology, but they must do so at least three (3) Business Days prior to the hearing. The CCFPO retains discretion to determine whether the hearing will occur in person or via video technology.
3. All hearings will be recorded, and Parties may request a copy of the recording from the Administrator following the live hearing.
4. No unauthorized recordings are permitted.
D. Hearing Participants
1. Persons who may be present for a hearing include the Hearing Officer, CCFPO, Investigator(s), bargaining unit representative, the Parties and their Advisors, anyone providing authorized accommodations, interpretation, and/or assistive services, and anyone else deemed necessary by the Hearing Officer. Witnesses are present only during their portion of the testimony.
E. Advisors
1. The Parties may have the assistance of an Advisor of their choosing at the hearing or can request that the College appoint a trained Advisor for them. Appointed Advisors are not attorneys. If a party wishes to have an attorney as their Advisor, they must locate and pay for that attorney themselves.
2. During the pre-hearing meeting and live hearing, Parties may only be accompanied by their Advisor. No other persons (e.g., additional support persons, advisors, friends, family) may accompany, attend, or listen in on the hearing unless explicitly authorized by the CCFPO, with each party being provided the same opportunity.
3. Parties and Advisors are permitted to have their phones and a laptop or tablet, but these should only be used during the hearing in a matter consistent with instructions from the Hearing Officer.
4. All questions during the hearing will be asked by the Hearing Officer. Parties and Advisors may suggest questions to be posed by the Hearing Officer during the pre-hearing meetings or by submission of written questions during the hearing. The method of submitting questions to the Hearing Officer will be specified by the Hearing Officer during the pre-hearing meetings.
F. Impact Statements
1. Each Party may submit an impact and/or mitigation statement to the Hearing Officer to review during any sanction determination.
2. The Hearing Officer will only consider impact statements if the Hearing Officer determines that the Policy has been violated.
G. Disability and Religious Accommodations and Other Assistance
1. Parties should contact the CCFPO at least ten (10) business days prior to the hearing, if possible, to arrange any disability or religious accommodations, language assistance, and/or interpretation services that may be needed at the hearing.
H. Evidence Provided to Hearing Officer and Parties
1. The Hearing Officer will be provided electronic copies of the Final Investigation Report and all relevant but not impermissible evidence, including the names of all Parties, witnesses, and Advisors, at least seven (7) business days in advance of the hearing.
2. The Parties will be provided with electronic copies of all the materials provided to the Hearing Officer as part of the hearing notice, unless those materials have already been provided.
3. The Final Investigation Report and relevant evidence may be shared using electronic means that preclude downloading, forwarding, or otherwise sharing.
I. Hearing Notice
1. The CCFPO will send the Parties a Notice of Hearing with sufficient time for the Parties to prepare for the hearing, typically at least ten (10) Business Days prior to the hearing. Once mailed, emailed, and/or received in-person, notice will be presumptively delivered. The hearing notice includes:
• A description of the alleged violation(s), a list of all policies allegedly violated, a description of the applicable hearing procedures, and a statement of the potential sanctions/responsive actions that could result.
• The time, date, and location of the hearing.
• A description of any technology that will be used to facilitate the hearing.
• Relevant information regarding hearing logistics, pre-hearing meetings, the Final Investigation Report, the Parties and witnesses participating in the hearing, the identity of the Hearing Officer, details related to questioning, the role of Advisors, impact/mitigation statements, and how to request disability accommodations or other assistance.
J. Witness Participation
1. Student witnesses are encouraged to participate in, and make themselves reasonably available for, the hearing. Employee witnesses are required to participate in, and make themselves reasonably available for, the hearing.
2. Witnesses may participate in-person or via video technology that allows the Hearing Officer and the Parties to see and hear the witness while that person is speaking. Witnesses are not permitted to be accompanied by an advisor.
3. At the discretion of the Hearing Officer a witness may join by phone if no other reasonable alternative is available.
4. If any party or witness does not appear at the scheduled hearing, the hearing may be held in their absence. For compelling reasons, the CCFPO may reschedule the hearing.
5. Hearings for possible violations that occur near or after the end of an academic term (assuming the Respondent is still subject to the Policies) and are unable to be resolved prior to the end of term will typically be held immediately after the end of the term, including during the summer, as needed, to meet the College’s resolution timeline and ensure a prompt resolution.
6. Employees, including Parties and witnesses, who do not have 12-month contracts are not required to participate in Resolution Processes that occur during months between contracts, but may voluntarily do so.
7. The CCFPO will notify all witnesses of their requested participation in the hearing at least five (5) business days prior to the hearing. Witnesses will be present for the hearing only during their testimony.
8. Any witness scheduled to participate in the hearing must have been first interviewed by the Investigator(s), unless:
a. All Parties and the Hearing Officer consent to the new witness’s participation in the hearing without remanding the complaint back to the investigator;
b. The Hearing Officer deems the evidence presented by the new witness to be relevant, not impermissible, and not information already established in the record; and
c. The witness’s late involvement was not the result of bad faith by the witness, the Parties, or others.
If the above criteria are not met, but the witness’s evidence is deemed relevant, not impermissible, and not duplicative, the Hearing Officer may, at their discretion, engage in any of the following actions:
a. Delay the hearing.
b. Provide the Parties at least five (5) business days to review the relevant portions of the new witness’s statements, if such statements are submitted.
c. Remand the Complaint back to the Investigator for further investigation or verification.
d. Allow the Parties to review and comment on the testimony of the new witness.
If the evidence is deemed not relevant or impermissible, the Hearing Officer may proceed with the hearing absent the new witness’s participation.
K. Pre-Hearing Meetings
1. The Hearing Officer will offer to convene a pre-hearing meeting(s) with the Parties and their Advisors and invite them to submit the questions or topics they wish to ask or discuss at the hearing. This allows the Hearing Officer to consider their relevance ahead of time to avoid any improper evidentiary introduction in the hearing or to provide recommendations for more appropriate phrasing. However, this advance review opportunity does not preclude the Parties from submitting a question at the hearing for the first time or asking for a reconsideration on a Hearing Officer’s pre-hearing decision based on any new information or testimony offered at the hearing. The Hearing Officer will document and share their rationale for any evidence or question exclusion or inclusion, if any, at a pre-hearing meeting with each party.
2. The Hearing Officer will work with the Parties to finalize a witness list for the hearing, and the CCFPO will notify any witnesses of the hearing’s logistics.
3. The Hearing Officer, only with the agreement of all Parties, may decide in advance of the hearing that certain witnesses do not need to be present if their testimony can be adequately summarized by the Investigator(s) in the Final Investigation Report or during the hearing, and their presence is not essential to assess their credibility.
4. Pre-hearing meeting(s) will not be recorded. The pre-hearing meetings will typically be conducted as separate meetings with each party/Advisor, and can be done remotely, or as a written communication exchange.
5. The Hearing Officer will work with the Parties to establish the format and timing of the meetings and will circulate a summary of any rulings made to ensure all Parties and Advisors are aware.
L. Evidentiary Considerations
1. The Parties must provide all evidence to the Investigator(s) prior to completing the Final Investigation Report. Evidence offered after that time will be evaluated by the Hearing Officer to determine its relevance. If relevant, the new relevant evidence will be admitted to the record if:
a. All Parties and the Hearing Officer assent to the new evidence being included in the hearing without remanding the Complaint back to the investigator;
b. The evidence is not duplicative of evidence already in the record;
c. It is not impermissible; and
d. The new evidence was either not reasonably available prior to the conclusion of the Final Investigation Report, or the failure to provide it in a timely manner was not the result of bad faith by the Parties, witnesses, or others.
2. If the above criteria are not met, but the evidence is deemed materially relevant and not duplicative, the Hearing Officer may, at their discretion, engage in any of the following actions:
a. Delay the hearing.
b. Provide the Parties with at least five (5) business days to review the relevant evidence.
c. Remand the Complaint back to the Investigator for further investigation or analysis.
d. Allow the Parties to review and comment on the new evidence.
3. If the evidence is deemed not relevant or impermissible, the Hearing Officer may proceed with the hearing without allowing the new evidence.
M. Collateral Misconduct
1. The Hearing Officer has the authority to hear and make determinations on all allegations of Discrimination and Retaliation under the Policy and Procedure and may also hear and make determinations on any additional alleged collateral misconduct that occurred in concert with such conduct, even though those collateral allegations may not specifically fall within the Policies.
N. Joint Hearings
1. In Complaints involving more than one Respondent and/or involving more than one Complainant accusing the same person of substantially similar conduct, the default procedure will be to hear the allegations jointly.
2. However, the CCFPO may permit the investigation and/or hearings pertinent to each Respondent or Complaint to be conducted separately if there is a compelling reason to do so. In joint hearings, separate determinations of responsibility will be made for each Respondent and/or for each Complaint with respect to each alleged Policy violation.
O. Live Hearing Procedure
1. Introductions and Hearing Procedure Explanation
a. The Hearing Officer will explain the hearing procedures and introduce the participants.
b. The Hearing Officer will answer any procedural questions prior to and as they arise throughout the hearing.
2. Investigator Presentation of Final Investigation Report
a. The Investigator(s) will present a summary of the Final Investigation Report, including a review of the facts that are contested and those that are not.
b. The Investigator may be questioned first by the Hearing Officer, and then by the Parties in the manner described in Testimony and Questioning provisions of this Procedure.
c. The Investigator may attend the duration of the hearing or be excused after their testimony at the Hearing Officer's discretion.
3. Testimony and Questioning
a. The Parties and witnesses may provide relevant information in turn, beginning with the Complainant’s opening statement, then the Respondent’s, and then questioning in the order determined by the Hearing Officer.
b. The Hearing Officer will facilitate questioning of the Parties and witnesses first by the Hearing Officer and then by the Parties through the Hearing Officer.
c. All questions must be directed toward and asked through the Hearing Officer and are subject to a relevance determination before they are asked.
d. The Hearing Officer will determine the method by which the Parties will submit their questions to the Hearing Officer for their review and, if approved, to be posed. Questions that the Parties wish to have posed can be questions for that party themselves, another party, or witnesses.
e. The Hearing Officer will explain any decision to exclude a question as not relevant, or to reframe it for relevance.
f. The Hearing Officer will limit or disallow questions they deem not appropriate on the basis that they are irrelevant, unduly repetitious (and thus irrelevant), seek or pertain to impermissible evidence, or are abusive. The Hearing Officer has final say on all questions and determinations of relevance and appropriateness. The Hearing Officer may consult with legal counsel on any questions of admissibility.
g. The Hearing Officer then poses the questions deemed relevant, not impermissible, and appropriate to the party and/or witness.
h. If the Parties raise an issue of bias or conflict of interest of an Investigator or Hearing Officer at the hearing, the Hearing Officer may elect to address those issues, consult with legal counsel, refer them to the CCFPO and/or preserve them for appeal. If bias is not an issue at the hearing, the Hearing Officer should not permit irrelevant questions that probe for Investigator bias.
i. The Hearing Officer will allow witnesses who have relevant and not impermissible information to appear at a portion of the hearing to respond to specific questions from the Hearing Officer and the Parties, and the witnesses will then be excused.
B. Refusal to Submit to Questioning and Inferences
1. Any Party or student witness may choose not to offer evidence and/or answer questions at the hearing, either because they do not attend the hearing, or because they attend but refuse to participate in some or all questioning.
2. Employee witnesses are required to participate in the hearing if they are reasonably available.
3. The Hearing Officer can only rely on the available relevant and not impermissible evidence in making the ultimate determination of responsibility.
4. The Hearing Officer may not draw any inference solely from a party’s or witness’s absence from the hearing or refusal to answer any or all questions.
5. An Advisor may not be called as a witness at a hearing to testify to what their advisee has told them during their role as an Advisor unless the party being advised consents to that information being shared.
C. Hearing Recordings
1. The College records hearings [but not deliberations] for purposes of review in the event of an appeal. No unauthorized audio or video recording of any kind is permitted during the hearing.
2. The Hearing Officer, the Parties, their Advisors, Appeal Decision-makers, and other appropriate College officials will be permitted to review the recording or review a transcript of the recording upon request to the Administrator. No unauthorized disclosure, including sharing, copying, or distribution of the recording or transcript, is permitted.
D. Deliberation and Determination
1. After closing statements from the Parties, the Hearing Officer will deliberate to determine whether the Respondent is responsible for the alleged Policy violation(s) based on the standard of proof.
2. When there is a finding of responsibility for one or more of the allegations, the Hearing Officer may then consider any previously submitted impact and/or mitigation statement(s) provided by the Parties in determining appropriate sanction(s).
3. The CCFPO will ensure that any submitted statements are exchanged between the Parties if they are viewed by the Hearing Officer.
4. Impact/mitigation statements do not influence the finding, they only potentially influence the sanctions.
5. The Hearing Officer will consider all factors and consult with other individuals as set forth in the Resolving Discrimination and Retaliation Allegations Procedure, and then prepare and provide the CCFPO with a written outcome letter detailing all findings and final determinations, the rationale(s) explaining the decision(s), the relevant and not impermissible evidence used in support of the determination(s), the evidence not relied upon in the determination(s), any credibility assessments, any sanction(s) and remedies, and rationales explaining the sanction(s) and remedies, and the College’s appeal procedures.
6. The decision will be submitted to the General Counsel or designee for a legal sufficiency review.
7. This statement is usually five to fifteen (5-15) pages in length and is typically submitted to the CCFPO within ten (10) business days from the conclusion of the hearing, unless the CCFPO grants an extension. The CCFPO will notify the Parties of any extension.
Procedure Title: Interim Discrimination and Retaliation Complaint Hearing Procedure
Policy Category: General
Policy Owner: President
Procedure Administrator: Chief Compliance and Fair Practices Officer
Contact Information: complianceofficer@aacc.edu
Approval Date: November 4, 2024
Effective Date: November 19, 2024
History: N/A
Applies to: Students and Employees of the College
Related Policies: Interim Nondiscrimination Policy
Related Procedures:
Forms/Guidelines: N/A
Relevant Laws: See Interim Nondiscrimination Policy