Nevada Faculty Alliance

Nevada Faculty Alliance Committee A / Legal Defense Policy and Procedures

Revised October 1999

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1. PREAMBLE

   The Nevada Faculty Alliance (NFA) offers a two-tiered, integrated program of assistance to faculty of the University and Community College System of Nevada (UCCSN) under its Committee A/Legal Defense Policies and Procedures. Committee A assistance is available to all faculty of the UCCSN, including part-time faculty. Legal Defense assistance is available to all full-time faculty of the UCCSN faculty who are members of the Nevada Faculty Alliance.

   Committee A is the American Association of University Professors' (AAUP) Committee on Academic Freedom and Tenure, created to uphold, implement and enforce the principles of academic freedom and tenure developed in the AAUP's 1940 Statement on these issues. The Nevada Faculty Alliance affirms and upholds AAUP Committee A principles as the premise of its statewide Committee A/Legal Defense Program; NFA further affirms the principles of academic due process and faculty governance. NFA supports these principles through Committee A work and by implementing an innovative program of legal assistance to extend, enhance and amplify services offered under traditional Committees A.

   Both NFA's Committee A and legal defense activities assist faculty in employment-related matters. NFA's Committee A/Legal Defense Program seeks to resolve cases at the lowest possible level of engagement to preserve productive, collegial relationships within the UCCSN whenever possible.

   This document governs NFA's Committee A/Legal Defense Program. It defines and delimits the range of issues addressed under the Program; describes the Program's structure at campus and state levels; defines and distributes responsibilities at each level of the Program; details procedures to be followed by faculty who wish to receive assistance; and outlines the processes by which individual cases are assessed and managed.

2. SCOPE

   NFA's Committee A/Legal Defense Program assists faculty in employment-related matters (see V.A.3 below). NFA's Committee A/Legal Defense Program does not assist faculty in matters unrelated to employment. Employment-related matters may include evaluation, promotion, denial of tenure, rescission of tenure, termination, conditions of employment, faculty rights, Code and Bylaws disputes, Code and Bylaws violations, constitutional rights, accusations under affirmative action guidelines as those accusations affect employment and governance issues as governance issues affect employment, subject to the definitions and exclusions stated below (see V.A. and V.D).

   NFA works within established employment law frameworks, understanding that internal processes must be exhausted before legal action can be considered. NFA works within national AAUP Policy documents.

3. STRUCTURE, ORGANIZATION & PROCEDURES

   The Nevada Faculty Alliance assists faculty through actions of campus Committee A/Legal Defense Committees, the statewide Committee A/Legal Defense Committee, and the NFA State Board. The actions and responsibilities of these bodies are carefully coordinated by this document, in interlocking sets of relationships and responsibilities which ensure that communication and effective action take place. Normally cases begin at the campus Committee A level and proceed to legal assistance only if deemed necessary by authorized NFA board action. Cases which require legal representation become the responsibility of the statewide Legal Defense Committee acting through its Co-Chairs. Legal Defense Co-Chairs act under authority from, and report directly to, the NFA State Board, the final arbiter in case selection and funding.

4. COMMITTEES A:
   1. Each NFA chapter shall form a Committee A to implement this policy on its campus.

   2. Each NFA Chapter shall select Committee A members according to Chapter bylaws.

   3. Where an NFA Chapter has not formed a separate Committee A, Chapter officers shall function as Committee A for that campus.

   4. NFA's state Legal Defense Co-Chairs shall serve as members of their chapter Committees A. Their presence on chapter Committees A ensure a seamless, responsive and effective program of assistance for NFA members.

   5. Normally Committee A members at the campus level work in pairs or teams to assist faculty.

   6. Committees A shall provide guidance, moral support and recommendations to all campus faculty who seek their help, within the limits of this and national AAUP policy documents.

   7. Committee A members shall be trained in national and state Committee A and Legal Defense principles, policies and procedures: academic due process, the contents and use of the UCCSN Code, their respective campus bylaws, informal and formal campus procedures for resolving disputes, preparation of documented time-lines, implementation of NFA policies and procedures and the rudiments of legal defense. NFA Committee A members shall assist faculty only after they have received formal Committee A/Legal Defense training from the state Legal Defense Co-Chairs and supplemental training re chapter Committee A procedures. Committee A members may receive additional training at the national level as opportunity allows.

   8. Committees A shall work in concert and communication with the state Legal Defense Committee via the designated campus Legal Defense Co-Chair. Committees A shall regularly inform the state Legal Defense Committee of matters underway, consult with the Legal Defense Committee on proposed actions, and work to maintain NFA's integrated program of case evaluation and resolution (see IV.O below).

   9. The President of each campus Chapter shall serve on the Chapter's Committee A.

   10. When a faculty member receives notice of a departmental, division, college or other administrative action which she or he considers unjustly threatening to his or her professional standing, the faculty member can turn to the campus Committee A for assistance. Members of the campus Committee A do not, in the first instance, act as advocates or judge the ultimate merits of the complaint, but work with the colleague who has requested help to prepare a documented time-line of the pertinent facts, offer support, attend meetings with the colleague as appropriate, and mediate, negotiate and reconcile differences if possible.

   11. Faculty seeking Committee A assistance should expect to complete a brief application for assistance and prepare a documented time-line of the events pertinent to the matter. Faculty seeking Committee A assistance should be prepared to cooperate fully with the assigned Committee A team in seeking to resolve the matter.

   12. When formal proceedings become necessary or the faculty member's right to future formal proceedings must be preserved, Committee A works with faculty to ensure that requirements of academic due process--requests for reconsideration, timely meeting of deadlines, access to records, presentation of evidence, presentation of witnesses, faculty representation--are met.

   13. Committee A teams begin informally, proceeding to formal grievance or appeals processes only if necessary. When a conflict is not resolved informally, the Committee A team helps the faculty member to proceed through formal appeals processes. If formal grievance proceedings do not resolve the matter, then Committee A work terminates and legal defense assistance begins for those who qualify.

   14. Campus Committees A, through their chairs, shall be in regular contact with the Legal Defense Co-Chairs, reporting cases under consideration to the statewide Legal Defense Co-Chairs at least monthly and seeking advice early in cases. Each month Campus Committees A shall complete a brief "Committee A Assistance Report" (form printed in triplicate) documenting actions taken in each case underway. Committees A shall forward two copies of each report to the appropriate Legal Defense Co-Chair, retaining one copy for Chapter records. The Legal Defense Co-Chairs will review reports during their monthly discussions and transmit a copy of each to the national AAUP as part of their normal reporting procedures.

   15. In addition to work on behalf of and in concert with affected faculty members, campus Committees A work in conjunction with Faculty Senates to develop institutional bylaws governing grievance and appeals procedures which guarantee due process and fair hearing.

5. LEGAL DEFENSE PROGRAM

   NFA's Legal Defense Program extends services NFA offers under Committee A, for NFA members who are full-time faculty only.

   1. DEFINITIONS
      1. Agent. "Agent" shall mean a member of NFA who currently holds one or more of the following positions: NFA state officer, NFA State Board member, NFA Legal Defense Co-Chair, NFA staff member, local chapter officers or persons designated by the local chapter or NFA State Board to serve as agent.

      2. NFA State Legal Defense Committee. The NFA State Legal Defense Committee shall be in charge of the Legal Defense Program, subject to approval of specific funding recommendations by the NFA State Board which appoints the Legal Defense Committee. The Legal Defense Committee shall consist of regional Legal Defense Co-Chairs as designated by the NFA State Board. Legal Defense Co-Chairs shall receive, assess, investigate, discuss and seek to resolve cases brought to them.

      3. Employment-Related Matter.
         1. Except as otherwise provided in paragraph b of this subsection, "employment-related matter" shall mean any matter involving:
            1. a dispute between a college, university or other institution of the UCCSN and one or more UCCSN employees who are members of the Nevada Faculty Alliance;

            2. a dispute between an institution of the UCCSN and one or more of its employees and/or an employee organization if the NFA State Board decides, by a majority vote at a noticed meeting, that the matter is precedential for the academic profession and should be pursued.

         2. "Employment-related matter" shall not mean a matter
            1. where the applicant for legal assistance is challenged by one or more subordinates, or by an employee organization, for actions taken by the applicant as a member of a personnel committee or for actions taken by the applicant in an administrative capacity; or

            2. where the applicant for legal assistance is covered by worker's compensation benefits.

      4. Legal Services

         "Legal services" shall mean services rendered in preparation for, or in the course of, grievance arbitration, impasse resolution, administrative proceedings or court proceeding involving an employment- related matter. Such "legal services" shall be rendered by an authorized NFA representative or an NFA-retained attorney licensed to practice law in Nevada.

      5. Member

         A person shall be deemed a member of the NFA when his or her application for membership has been signed and dated by an agent of the NFA.

      6. Occurrence

         "Occurrence" shall mean an act or omission, or a series of acts or omissions, alleged to have been committed by an employee which:

         1. has/have been documented in writing by an individual vested with authority to evaluate an employee of a college, a university or other institution of the UCCSN; and which

         2. results/result in one or more employment-related matters.

      7. Participating Attorney

         "Participating attorney" shall mean an attorney licensed to practice law in Nevada who has agreed to furnish legal services to the NFA Legal Defense Program. The NFA State Board shall approve and maintain a list of participating attorneys as recommended by the Legal Defense Co-Chairs. The NFA State Board may modify its list of participating attorneys at any time.

      8. Letter of Application for Legal Assistance

         An NFA member seeking legal assistance beyond Committee A work and beyond initial consultation with the designated Legal Defense Co-Chair must submit a written letter of request for legal assistance to the Legal Defense Co-Chair, accompanied by the documented time-line prepared under IV.K above.

      9. Legal Assistance Agreement

         Members whose cases have been funded by the NFA shall complete a "Legal Assistance Agreement" accepting the terms and conditions of NFA assistance as defined under section IV.E and F below. The Legal Assistance Agreement shall be signed by the applicant, the designated NFA attorney and the appropriate Legal Defense Co-Chair.

   2. ELIGIBILITY
      1. To qualify for NFA legal assistance, the applicant shall be:
         1. a member at the time of the occurrence who has not terminated membership before asking for legal assistance; or

         2. a non-member whose employment-related matter the NFA State Board decides, by a majority vote at a legally noticed meeting, is precedential for the academic profession and must be pursued.

      2. NFA shall not discriminate against applicants on the basis of race, creed, national origin, sex, sexual orientation or age.

      3. Members receiving legal assistance from the NFA shall not terminate membership while receiving such assistance.

   3. COVERAGE
      1. Administrative Actions
         1. Where agents of the UCCSN seek to dismiss a member or take administrative or legal action against a member in connection with the practice of the profession, NFA shall attempt to ensure the member due process and fair hearing in administrative proceedings as provided under the UCCSN Code and campus bylaws. NFA funding for members undergoing administrative hearings may include hearing costs, transcript costs and attorneys fees. All costs and fees must be approved by the NFA State Board upon recommendation of the Legal Defense Committee after the Committee, through its appropriate Co-Chair, has consulted with a participating NFA attorney.

         2. Committee A representatives will accompany and represent faculty at grievance and mediation hearings and, unless legal questions or extenuating circumstances require the presence of an attorney.

         3. At formal suspension hearings or Chapter VI hearings a participating attorney will accompany and represent members upon approved request. Members must apply in writing to the designated Legal Defense Co-Chair for attorney representation at suspension hearings, who must approve any such request.

         4. NFA's Legal Defense Co-Chairs, acting in consultation with the State Board and a participating attorney, will decide when an attorney's services are required in administrative proceedings.

      2. Legal Actions
         1. The NFA State Board may fund legal action in any employment-related matter. Legal action may include hearings before state administrative agencies, appeals from administrative agencies to state or federal courts, legal actions initiated in state or federal courts, and/or hearings before the Board of Regents. The NFA State Board may fund legal action only when a member or an employee association has:
            1. Consulted with the Legal Defense Committee via the appropriate Co-Chair and received NFA approval prior to initiating legal action; and

            2. Developed, in consultation with the participating attorney and the Legal Defense Co-Chair, a strategy designed to maximize the success of the action.

         2. NFA shall consider the following criteria in deciding whether to fund legal action in an employment-related matter:
            1. The ability of the member to diligently and effectively pursue the matter to its ultimate conclusion;

            2. The likelihood of success on the legal merits of the case;

            3. The organizational value of the case;

            4. The precedential value of the case;

            5. The availability of funds.

         3. NFA may provide less than full funding for legal actions it supports, at the discretion of the NFA State Board.

      3. Assistance for Part-time Faculty

         Part-time faculty who are members of NFA shall receive assistance under NFA's Committee A structure operating at the campus level. There shall be no legal defense coverage for part-time faculty who are members under current Policies and Procedures. Nevertheless, the NFA, at its discretion, may take up cases it deems important to members. NFA reserves the right to litigate on behalf of its members, whether part-time or full-time faculty, regardless of membership status.

      4. Right to Refuse Legal Assistance

         NFA reserves the right to refuse to provide legal assistance in cases not of common interest to members, where members are not able to peruse the matter diligently, or where chances of success are remote.

   4. EXCLUSIONS

      NFA funding will not be provided for the following:

      1. Criminal matters;

      2. Intentional torts;

      3. Civil matters not involving employment-related issues of common interest;

      4. Legal services rendered without the prior approval of the NFA under the terms of the NFA Legal Defense Program;

      5. Fees in excess of rates agreed upon with participating attorneys; and/or

      6. Failure to comply with the provisions of this document;

      7. Failure to accept a settlement deemed appropriate by NFA and its agents.

   5. PROCEDURES FOR OBTAINING LEGAL ASSISTANCE
      1. Members shall request legal assistance on employment-related matters by contacting the chair of the campus Committee A or the Chapter President, who will in turn put the member in touch with the Legal Defense Co-Chair designated for that campus. In no case shall applicants for legal assistance speak directly with participating NFA attorneys without explicit authorization from the appropriate Legal Defense Co-Chair. If such unauthorized contact is made, the member is personally responsible for costs of such contact.

      2. Members apply for legal assistance by providing the Legal Defense Co-Chair with the documented time-line, (usually prepared during the Committee A phase of the case) together with an accompanying letter outlining the reasons for requesting assistance and the remedy or remedies sought. The Legal Defense Co-Chair will evaluate the materials, decide if additional documents are necessary, and meet with the member to discuss the case. The Legal Defense Co-Chair, in consultation with the member and a participating attorney, will then determine what further actions are necessary. Since NFA seeks to resolve cases at the lowest possible level of engagement, the Legal Defense Co-Chair may engage in further mediation or negotiation in an effort to resolve the matter. The Legal Defense Co-Chair may seek the advice and counsel of a participating NFA attorney throughout this process as appropriate, within the limits stated in V.E.3 below.

      3. The Legal Defense Co-Chairs are empowered to authorize one hour's initial consultation with an attorney and up to four additional hours of attorney work in a given case before seeking formal funding from the NFA State Board. The Legal Defense Co-Chairs may also seek the advice of NFA attorneys within the limits defined above, in an effort to determine the amount of support NFA should consider offering a member.

      4. If a case cannot be resolved within the five hour time limit described above, the Legal Defense Co-Chair shall refer the matter to the statewide Legal Defense Committee for review. The Legal Defense Co- Chairs shall meet as needed, including by telephone conference call, to determine what assistance shall be recommended to the State Board for each applicant. The Legal Defense Co-Chairs will consult with one another on a regular basis about pending matters, including cases reported from Committees A.

      5. Further, if a case cannot be resolved within the five hours authorized by the Legal Defense Co-Chair, the affected NFA member may write to the NFA State Board c/o the Legal Defense Co-Chair requesting further legal assistance. The Legal Defense Co-Chair shall submit the member's letter to the NFA State Board, together with the Legal Defense Co-Chair's letter, stating the Co-Chair's assessment of case. The Co-Chair shall also submit to the NFA State Board a letter from the participating NFA attorney analyzing the case in detail, estimating the likelihood of success in the case and stating the probable cost of litigation. The Legal Defense Co-Chair shall submit these documents to the NFA State Board within fourteen days of receiving the member's letter of request for funding.

      6. The NFA State Board shall meet within thirty (30) days of receiving a completed request for funding to vote upon the matter. The NFA State Board may meet by telephone conference call to discuss the funding of cases if time constraints require.

      7. Participating attorneys shall send approved billings in funded cases to the NFA State Treasurer no later than sixty (60) days from the date the service was performed. The NFA Treasurer shall maintain records on individual approved cases in terms of amounts paid on each case, and authorized amounts shall not be exceeded without NFA State Board approval.

      8. An NFA member and the member's campus Chapter shall be notified in writing if the request for legal assistance is denied. The notice shall state in writing the reasons for denial and the member's right to appeal the denial to the NFA State Board (see below).

   6. REIMBURSEMENT BY MEMBER OR ASSOCIATION

      NFA members who receive funding shall reimburse the NFA up to the amount expended for legal assistance out of any recovery, whether by judgment, settlement or insurance payment, which exceeds the member's actual documented expenses or losses. The member shall furnish an accounting of such expenses or losses to the Legal Defense Co-Chair when the case begins, and shall up-date this accounting regularly during the legal action.

   7. OTHER
      1. Copies of all documents related to any case receiving legal assistance must be sent to the Legal Defense Committee via the Legal Defense Co-Chair on a timely basis. The funded member and the participating attorney must keep the Legal Defense Committee fully informed of all developments in the case. Failure to do so in a timely manner may result in withdrawal of financial support for the legal action.

      2. NFA, through its Legal Defense Co-Chairs, is to be represented in any negotiation or mediation where efforts are made to resolve and settle a case NFA has funded. NFA representatives must agree in writing with any settlement reached. Failure to involve the designated Legal Defense Co-Chair can result in withdrawal of NFA financial support for the legal action. If NFA representatives agree that a good settlement offer has been received, but the member refuses such offer, then NFA has the right to withdraw further financial support from the legal action. Such a withdrawal of legal assistance may occur only after the NFA State Board discusses the matter in detail and votes by a majority to withdraw aid. The member requesting further assistance shall furnish a written defense of his or her position and appear before the NFA State Board in person to make his or her case.

   8. LEGAL ASSISTANCE APPEAL PROCEDURES

      If the NFA State Board has refused to fund a member's application for legal assistance, or has decided to terminate assistance, and the member requesting the assistance wishes to appeal the decision, the following procedures shall apply:

      1. The NFA State President or designee must receive a written request for an appeal hearing from the member or member's campus Chapter to schedule a hearing. The written request for an appeal hearing must be submitted within thirty (30) days of the member's receiving notification of a decision not to grant, or to rescind, legal assistance.

      2. The NFA State President shall call a meeting of the NFA State Board to hear the appeal. The appeal will be heard as a closed session item.

      3. The NFA State President shall contact the member who seeks to appeal to inform the member of the date, time and place of the meeting.

      4. The Co-Chairs of the Legal Defense Committee and/or the participating attorney will present reasons for denial to the NFA State Board and the appellant.

      5. The appellant or the appellant's Chapter representative shall present the appeal to the NFA State Board. No member of the Board shall present an appeal on behalf of the member, unless specifically requested to do so by the member.

      6. The member or Chapter representative shall be informed of the NFA State Board's decision at the end of the hearing and also in writing.

6. LEGAL DEFENSE IN COLLECTIVE BARGAINING INSTITUTIONS

   When an NFA Chapter has arrived at a contract with a UCCSN institution through collective bargaining under UCCSN collective bargaining rules, the following provisions apply:

   1. Use of NFA Attorneys.

      Use of NFA attorneys is limited to enforcement of the bargained contract or to specific uses spelled out in the contract (e.g. authorized grievance procedures). If provisions of the contract are applied in a grievance brought under the contract, then NFA can only engage in legal action concerning the grievance if the grievant claims that procedures have not been followed correctly, and if the NFA State Board agrees that procedures have been violated, therefore requiring legal action.

      NFA reserves the right to litigate on behalf of NFA members in employment-related matters (a) not covered by the collective bargaining agreement, but (b) designated in the collective bargaining agreement as covered by the UCCSN Code and institutional bylaws.

   2. NFA's Duty to Members of the Bargaining Unit

      It is NFA's duty under the contract to assist any member of the bargaining unit, whether a member of NFA or not, in matters where a violation of the contract provisions is alleged. Final authority to seek legal redress for an alleged contract violation rests with the NFA State Board.

   3. Recommendations for Legal Action

      The NFA State Board shall base any decision to take legal action to enforce provisions of the collective bargaining contract upon the recommendation of the campus Chapter, acting through its President, and upon the recommendation of the Legal Defense Co-Chair responsible for that campus. In making such a decision, the NFA State Board shall receive and review an assessment of the matter provided by an NFA-retained attorney. The NFA attorney shall analyze the issues of the case in detail, and also state to the Board the probabilities of success and the cost of such a course of action.