The Texas A&M University System

How to Survive Your Turn on a Hearing Committee,
and Preserve Your Legal Sanity!

Many of the suggestions found in these guidelines come from A Guide to Conducting a Hearing in a Higher Education Setting by Robert E. Bienstock, published by College Administration Publications, Inc. and used with permission. The book may be purchased online or by calling College Administration Publications at (800) 367-9577.

It happens to all of us in higher education eventually. We open the mail, or take a phone call, and suddenly, we are on a committee. Or, for those of us who have been especially "active," we are chairing one. As with many things in life, you can run but you can't hide from committee service in most situations. Here is a brochure to answer questions that frequently arise when A&M System faculty and staff find themselves serving on committees that impose or review disciplinary measures.

These general guidelines are promulgated to help TAMUS members to conduct efficient, effective and fair hearings.  Please remember that these are general guidelines which will cover basic areas.  When conducting a hearing, the committee members, chairpersons and administrators should consult, so as to be familiar and comfortable with, the applicable policy, rule or regulation for specific information.

I. Due process = notice and an opportunity to be heard.

Constitutional law states that an individual is entitled to due process when deprived of  life, liberty or property by the government.1  Due process does not entitle anyone to a specific kind of hearing.  It is not necessary to use complicated rules about evidence, cross examination, legal representation or other typical features of courtroom trials.  Due process entails two basic principles.  The person must be provided notice and the opportunity to be heard.

Notice means that the individuals involved must be told what is going on.  The respondent must know what he or she has been accused of (if anything) and the basic evidence for the allegations made.  The grievant must know what the panel will consider.

Each side has the right to know whatever the panel and the other side know, within reason.  This means that, for example, the panel normally would not question witnesses behind closed doors without both parties present.  Similarly, the panel would not send letters to one side without copying the other side.

The opportunity to be heard means that you must give each side an opportunity to present its best case.  It also means that you must truly listen to the evidence and the arguments.  It does not mean that the parties control the process or that they can demand particular procedures.  The chair and the panel must do their best to provide a fair process, as dictated by common sense, not by either party’s perception of fairness.

II. Before the Hearing

Consult the relevant policies, regulations, procedures, etc.!

Make sure that you adhere to the hearing procedures outlined in the policy or relevant handbook.  For example, some faculty committees on tenure policies explicitly allow representation by attorneys.  Also, many times in university settings panels are charged with investigating rather than  making a decision about whether a policy has been violated (e.g., scientific misconduct allegations).  Special rules and considerations, if any, need to be understood by all parties involved.  If any of these general guidelines conflict with system or institutional policy or procedures, then the specific policy or procedure will prevail.  [TAMUS Policies, Regulations, and Rules are available online.]

Understand the terminology

The grievant is the person who has instituted the panel process and is alleging or grieving that something has harmed him or her.  He or she is asking for the panel to do something.  The respondent is the individual (or individuals) being asked to respond to the allegations.  The respondent is generally responding to complaints about his or her (or their) conduct or behavior.

Prepare the parties

Decide as many procedural issues as far in advance as possible and convey this to the parties.  Provide copies of the hearing procedures, if any, to be used.  Some basic items to cover are as follow:

• Who goes first
• Time limits
• No surprise witnesses or evidence
• Number of copies of evidence to be submitted
• Role of attorneys/advisors
• How many witnesses are to be questioned

Frame the issues

In complicated cases, you can often reduce the length of the hearing by pushing the parties to carefully define their issues prior to the hearing.  The grievant should be required to specify what conduct he or she is grieving and what institutional policies or rules are at issue.  The respondent needs to know this information to best prepare its defense, and the panel needs to know this information to do its work.

Set time limits

Ask each side how much time they reasonably need.  Hold them to it.  So long as there is plenty of notice, there is nothing wrong with reasonably limiting how much time a party has to present its case.  Each party must have the opportunity for the same amount of time, although they can certainly use less time.  You can allot a block of time to each party which they can use as they wish, or you can set presentation time and cross examination time.

Define the roles of representatives and attorneys

Generally the parties can bring an advisor or an attorney to the hearing, but this person may not speak on the party’s behalf.  The advisor/attorney is there solely to enable the party to have someone to consult.2

Provide notice

Hearings in the higher education setting should not become “trials by ambush”.  The panel will be able to make a better decision if it gets full information.  The parties will be able to present better information to the panel if they know more about each other's case.  Require both parties to exchange a list of all witnesses to be called and documents or other evidence to be presented at least one week in advance.  The panel should also be provided this information along with the relevant policies well in advance.  At the hearing do not allow a party to use a witness who is not on the list.  Unless a piece of documentary evidence is shared at the appropriate time, it should not be allowed to be used as evidence.3

If your regulations or rules mandate that the hearing should be open, they will generally control. If it is not addressed, or is optional, require the parties to state in advance whether they want the hearing to be open to the public.

Require the parties to state whether they will be bringing an advisor to the hearing, and if so, whether the advisor is an attorney.  If either side says it is bringing an attorney, then both sides may bring one.

Communicate equitably

There should be no communications about the dispute between one party and the panel or a panel member.  All communications should be either by meetings with all parties present, or correspondences in which all parties are copied.  This does not include communications among panel members.  If a panel member is serving as administrator, for details like calendars and procedures,  they should be careful not to discuss the merits of the issues.  Care must also be taken to discuss the same issues with both parties.

Document, document, document

Each step outlined above should be well documented.  Notices and explanations and, especially, the  panel's charge should be written and provided to the parties and the panel well in advance of the hearing.

Stay inside the lines

The committee should have a specific charge from the administration that delineates the issues it is to consider. Other issues or concerns that arise during the hearing process should NOT become part of the committee's mandate unless properly made so by existing rules or by administrative action. Committees are not like grand juries or investigative agencies. Wandering outside of the scope of a committee's charge can result in serious problems for individual committee members: it could cause your qualified immunity from liability to be removed by operation of law.

Seek help

At any stage in the process, the panel may access the Office of General Counsel for help with legal and procedural questions.

III. During the hearing

Retain control

Remember that you, the panel, are in control of the hearing.  This is especially important since you are the neutral group in the room representing neither the administration or faculty but constituted by the institution itself.  If a party or a party’s advisor gets into a dispute with you over a point, you should, after providing a reasonable opportunity for presenting arguments, simply make a decision and move on.  Remember that you control decorum in the hearing room.  Anyone who refuses to follow your decisions may be silenced, or, in the worst case scenario, be barred from the room.  (They should be let back in after they have had time to settle down.)  Remember that the individuals involved will match and mirror the panel's behavior.  Panel members should stay calm, be polite (to the parties and to each other!) and demand proper decorum.

Remember the forum

Remember that this hearing is not a trial at law.  Technical legal rules of evidence do not apply.  Your job is to hear what the parties have to say and make a judgment.  Parties should not be able to “exclude” evidence from the panel.  Rather, the party should explain to the panel why he or she thinks the evidence is misleading, irrelevant or inflammatory.  The panel may ask the particular relevancy of any evidence (including witness statements) and limit its use. Normally, the burden of proof standard is preponderance of the evidence, not beyond a reasonable doubt. If you are unsure what the proper standard is, consult the Office of General Counsel.

Keep an open mind

Usually, as you hear information, you absorb it and develop your opinions as you go along.  You should not do this at a hearing.  You should be no closer to a decision toward the end of a hearing than you were at the beginning.  The actual decision-making should be postponed until deliberations as much as possible.

Keep time limits: stay on schedule!

Make sure that each party’s times are kept separate.  Designate someone to watch the clock and let the party know when it is time to wrap up.  Make sure that you don't count one party’s cross examination of the other party’s witness or panel questions against the time allotted to the first party.  Also, if a party seems to be belaboring a point, instruct the party to move on with its case.

Keep in mind that schedules need to be set and adhered to.  With so many people involved, it will be difficult to reschedule or continue the proceedings.  If the hearing takes place over a period of months, as a result of delays, it is difficult for the panel to weigh the evidence evenly.

Define the role of witnesses

Witnesses are not advocates.  They are not there to argue for one side or the other.  Witnesses are there to truthfully tell the panel the facts as  he or she remembers them.  Explain this to the witness before they address the panel.  A party should be cautioned against treating witnesses as proprietary or encouraging them to stonewall, if that is happening.  It is a good, but not mandatory practice, to exclude non-party witnesses from the hearing room so that they do not hear each other's testimony.  Depending on the formality of the hearing, you should limit the interaction between parties and witnesses to a question and answer format.  Remember the witness's task is to tell the panel facts to the best of his or her recollection.  These facts may not coincide with the party’s version of events.

Witnesses should be protected from abusive questioning.  This does not protect them from being asked hard questions— questions that force them to admit unpleasant truths.  It does mean that the tone of questioning should be civil.  If all else fails, you can require the parties to do cross-examination by submitting proposed questions to the panel, and having the panel ask them.  Just be sure to give the parties enough time to do this.

Ask questions

It is difficult for most witnesses to tell their stories and remember all the key points; you are usually better off not interrupting and saving your questions until the end.  Do not be afraid to let the parties or witnesses know what you think is credible (or incredible) or to confront them with opposing evidence.  It is important for the chair of the panel to moderate the panel questions.  Let each panelist ask questions in turn, with as many turns as needed.  Do not allow panel members to interrupt a witness’ answer to ask a new question.

Remember the 3 “C”S

Whenever possible, operate from the 3 “C”s mode.  Your communications need to be:

Clear
Concise
Consistent

Instruct the parties accordingly.  Stick to the rules you have set.  Do not allow the parties to whittle away the power of the panel to dictate the process.  Decisions you make may upset someone.  Be clear and concise (“You have 5 more minutes.”  “You may not further pursue that line of questioning.”  “Please move on.”) and consistent.  It is not your job to make everyone happy.  It is your job to be as fair as possible.

Limit questioning of witnesses as necessary

The panel is entitled to set limits on the questioning of and panel members should participate in questioning.  If the parties become hostile, they can be required to submit written questions to the chair, or the questioning can be limited.

Notes

You may or may not wish to keep notes.  Be advised, however, that in many cases, your notes would be subject to disclosure through the Public Information Act or through the discovery process in litigation.

IV. Deliberations

Only use evidence presented at the hearing

Prior familiarity with the case or one of the parties or witnesses does not require recusal.  (See Conflicts of Interest, below.) Any information that may be provided outside the hearing process should not be shared among the panelists nor should it be considered during decision making.

Evaluate conflicting testimony

Use your common sense and personal experience to evaluate directly conflicting accounts of what happened.  Do not rely upon your personal like or dislike of a party or a witness.  Take into account consistency on details and the credibility of the respective witnesses.  Taking into account all the evidence, you have to decide in your mind what most likely happened.

Establish who must prove the case and standard of proof

The grievant in most cases, must bring enough evidence to establish the charges.4  For example, if a grievant claims he or she was discriminated against, he or she must provide enough evidence to back up this claim.  In baseball, the tie goes to the runner.  In hearings, the tie goes to the respondent.  If the grievant doesn't bring enough evidence to prove the charges, you must find for the respondent.5

The standard of proof in matters that are routinely handled by committees is not the "beyond a reasonable doubt" standard with which most people are familiar. That standard applies only in the criminal law arena. Committee matters are generally considered under the less stringent standard of a "preponderance of the evidence," meaning that the successful party is required to present enough credible evidence to outweigh that of the other party.

Make a decision

Never throw up your hands and say that you cannot decide because you are not certain, or because the evidence is too close to call.  Review the facts carefully and review the charge.  Keep reviewing until you can make a decision.

Don't be a lawyer, even if you are one

Many committee members feel as if their committee service is an opportunity to put to use all of their heretofore repressed legal skills, regardless of whether or not they have been to law school or have a license. The scope of a committee member's responsibilities does not include giving legal advice, opinions, or interpretations to the committee--either "officially" or "unofficially". In fact, such advice, although usually well-intended, may lead to serious problems, up to and including malpractice suits and loss of liability insurance protection. Following the legal advice of a fellow committee member may unintentionally cause you to have some of the same problems: remember, he or she is NOT your lawyer! The Office of General Counsel and its attorneys are the only persons who can give proper legal advice to a university committee. Any questions of law should be directed to that office via proper administrative channels.

V. Written Findings

Describe the Process

Briefly describe the process you used.  Recite when the hearing was and how long it lasted.  Describe when the deliberations took place and how long they lasted.  State whether the decision was agreed to by all panelists or if there were dissenting opinions.

Findings of Fact and Conclusions

Describe what you, as the panel, believe happened.  Each main point should be addressed.  Do not merely recite each party’s evidence.  For example:

“Student A claimed that Professor B hit her.  Professor B claimed that he merely tried to touch Student A’s arm to avoid falling.”

This is not a finding of fact.  It is a summary of evidence.  The panel must decide whether it believes Student A, Student B or a different version.  For example:

“We find Professor B hit student A.  Therefore Professor B violated the University Code of Conduct,” or “We find Professor B did not hit Student A. Therefore, the University Code of Conduct was not violated.”

Recommendations

Be reasonable and strive for consistency. Include recommendations for what should now be done if appropriate and you feel comfortable doing so.  Do your best to make  reasonable recommendations based upon the facts before you and to provide  justification.  Stay within the realm of possibilities.  Your  recommendations, if  any, should be rationally related and  appropriate to the matters brought before the hearing committee.

Avoid the use of technical legal terminology in written committee findings and documentation. Terms like "negligent," "liable," "innocent," "guilty," and "intentional" have very specific legal meanings, even though they are used in common speech and written communication. Use of such terms in a document produced by an official committee may be inappropriately interpreted by a third party as being grounded upon the same stringent proof requirements as when they are used in legal proceedings.

Appeal Process

Reference the appropriate appeal process and deadlines, if any.

Drafts

Do not keep or maintain draft copies of the committee's findings, once a final finding has been issued.

VI. Conflicts of Interest

Prior Relationships

Contrary to popular belief, a panelist may still serve in the panel even if they know one or more parties or witnesses, even if those involved have a prior relationship.  If the relationship is such that it will not affect your decision-making or produce bias, there is no reason to excuse (this is also called 'recuse') yourself from the panel.  However, the nature of the relationship (members of the same church, for example) should be disclosed to the other panel members and to the parties to be sure that no one objects.  However, if you are best friends or immediate family members with a party or key witness, the relationship would probably be too strong to allow you to continue—you would likely be influenced by the relationship (including, possibly, bending over backwards to be fair to the other side).

Interest in Outcome

It would be considered a conflict of interest if a panelist has a personal interest in the outcome of the hearing.  For example, if an employee is claiming discrimination in a failure to receive a promotion, and a panelist's spouse works in the same department, the decision of the panel could ultimately have an effect on the spouse's future career path.  In such cases, the panelist should recuse themselves from the panel.

Prior Familiarity with Facts of Instant Case

Especially in a university community, some cases reach a level of publicity in which panelist may well have some second hand familiarity with the cases.  While this might create a problem in a criminal trial, it is not enough to cause recusal in a university hearing.  If however, you have personal familiarity with key facts of the case that you believe you will not be able to defer to the evidence presented to you, you may need recuse yourself.

Footnotes

1. When people complain that the grievance procedures violated their rights or that institutional policies have been violated, courts will typically view these rights as a form of "property" and therefore require us to make sure we have provided "due process."

2. Some TAMUS policies, regulations or rules allow attorney representation in certain hearing procedures. Unless explicitly otherwise stated, the general rule is that attorneys do not actively participate in the hearing.

3. As with any general rule, there are exceptions. If the party can establish that they have a very, very good reason to use "surprise" evidence, you may consider making an exception to this rule. But remember that is is fundamentally unfair to the other party to be surprised this way and you may have to provide that party some kind of process (more time, limits on use, etc.) to make the situation more fair.

4. Be sure to check the relevant policy, regulation or rule on this. In student disciplinary appeals and employee terminations, for example, the institution, not the student or employee, must establish reasonable cause for its action.

5. In cases where the institution or the respondent must establish cause, then that party must bring enough evidence to refute the charges.