By:  Barrientos                                        S.B. No. 538
       73R4177 SOS-F
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the creation of the higher education grievance panel
    1-3  and to grievance procedures for faculty members of public
    1-4  institutions of higher education.
    1-5        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-6        SECTION 1.  Chapter 51, Education Code, is amended by adding
    1-7  Subchapter Q to read as follows:
    1-8        SUBCHAPTER Q.  GRIEVANCE PROCEDURES FOR FACULTY MEMBERS
    1-9        Sec. 51.721.  DEFINITIONS.  In this subchapter:
   1-10              (1)  "Commissioner" means the commissioner of higher
   1-11  education.
   1-12              (2)  "Faculty member" has the meaning assigned by
   1-13  Section 51.101 of this code.
   1-14              (3)  "Governing board" has the meaning assigned by
   1-15  Section 61.003 of this code.
   1-16              (4)  "Institution of higher education" has the meaning
   1-17  assigned by Section 61.003 of this code.
   1-18              (5)  "Panel" means the higher education grievance panel
   1-19  established under this subchapter.
   1-20        Sec. 51.722.  APPLICATION OF OTHER LAW.  The procedures under
   1-21  this subchapter apply to a hearing under this subchapter
   1-22  notwithstanding the Administrative Procedure and Texas Register Act
   1-23  (Article 6252-13a, Vernon's Texas Civil Statutes).
   1-24        Sec. 51.723.  HIGHER EDUCATION GRIEVANCE PANEL.  (a)  The
    2-1  higher education grievance panel is composed of 15 members
    2-2  appointed by the commissioner from a list of at least 30 candidates
    2-3  compiled on the commissioner's request by the American Arbitration
    2-4  Association or a comparable national organization.
    2-5        (b)  To be eligible for appointment to the panel, an
    2-6  individual may not be an employee of an institution of higher
    2-7  education and must be:
    2-8              (1)  a resident of this state; and
    2-9              (2)  an arbitrator qualified in accordance with the
   2-10  standards of the American Arbitration Association or a comparable
   2-11  national organization.
   2-12        (c)  Members of the panel serve three-year terms.
   2-13        (d)  In the event of a vacancy, the commissioner shall
   2-14  appoint an individual with similar qualifications to fill the
   2-15  unexpired term.
   2-16        Sec. 51.724.  APPLICATION FOR HEARING.  (a)  A faculty member
   2-17  may request the panel to conduct a hearing on the faculty member's
   2-18  wages, hours of work, or conditions of work, including termination
   2-19  of employment and resolution of issues after the faculty member has
   2-20  been terminated, alleged discrimination, failure to receive a
   2-21  promotion or increase in salary, change in duties or status,
   2-22  working conditions, change in institution practices that results in
   2-23  unfair and unequal treatment, a work-related incident, or demotion,
   2-24  if the faculty member mails a written application for a hearing to
   2-25  the commissioner not later than the 30th day after the date the
   2-26  faculty member receives notice of the final decision relating to a
   2-27  grievance as the final decision of the internal grievance procedure
    3-1  of the institution of higher education that employs the faculty
    3-2  member.
    3-3        (b)  The application must include:
    3-4              (1)  the name, address, and telephone number of the
    3-5  faculty member;
    3-6              (2)  the name of the institution of higher education;
    3-7              (3)  a concise statement describing the matter and the
    3-8  relief requested;
    3-9              (4)  evidence that the internal grievance procedure at
   3-10  the institution has been exhausted; and
   3-11              (5)  the name of the municipality in which the faculty
   3-12  member requests a hearing on the matter to be held.
   3-13        (c)  Not later than the seventh day after the date the
   3-14  commissioner receives an application under this section, the
   3-15  commissioner shall notify the institution of higher education of
   3-16  the application for a hearing on the matter.
   3-17        (d)  If the commissioner determines that an application for a
   3-18  hearing complies with the requirements of this section, the
   3-19  commissioner shall certify the application and, not later than the
   3-20  seventh day after the date of certification, notify the faculty
   3-21  member and the institution of higher education that a hearing on
   3-22  the matter will be scheduled.  The notice must include a list of
   3-23  three panel members, one of whom shall preside at the hearing and
   3-24  adjudicate the controversy.
   3-25        Sec. 51.725.  SELECTION OF ADJUDICATOR FOR HEARING.  (a)  The
   3-26  faculty member and the institution of higher education may each
   3-27  designate a preference for the adjudicator by striking the name of
    4-1  one panel member from the list, ranking the remaining names in the
    4-2  order of preference, and returning the list to the commissioner.
    4-3        (b)  If the returned lists indicate a mutual choice to serve
    4-4  as adjudicator at the hearing, the commissioner shall appoint that
    4-5  panel member to preside at the hearing.
    4-6        (c)  If the returned lists do not indicate a mutual choice to
    4-7  serve as adjudicator, the commissioner shall appoint a panel member
    4-8  whose name has not been stricken from a list to preside at the
    4-9  hearing.
   4-10        Sec. 51.726.  TIME AND PLACE OF HEARING; NOTICE.  (a)  Except
   4-11  as provided by Subsection (b) of this section, the commissioner
   4-12  shall set the time and place of the hearing and notify the parties
   4-13  after consulting with each party concerning the time and place of
   4-14  the hearing.
   4-15        (b)  The hearing must be held before the 31st day after the
   4-16  date the adjudicator is appointed.
   4-17        Sec. 51.727.  HEARING.  (a)  Before the hearing begins, the
   4-18  adjudicator must take an oath to faithfully hear and examine all
   4-19  matters in controversy and to render a just decision.
   4-20        (b)  Unless the order of proceedings at the hearing is
   4-21  changed by the adjudicator on the adjudicator's own initiative or
   4-22  at the request of a party, the order of proceedings is:
   4-23              (1)  an opening statement by the faculty member and
   4-24  then the institution of higher education;
   4-25              (2)  presentation of evidence, witnesses, and arguments
   4-26  by the faculty member;
   4-27              (3)  cross-examination by the institution of higher
    5-1  education;
    5-2              (4)  presentation of evidence, witnesses, and arguments
    5-3  by the institution of higher education;
    5-4              (5)  cross-examination by the faculty member; and
    5-5              (6)  summation by the faculty member and then the
    5-6  institution of higher education.
    5-7        (c)  After the summations, if the parties agree in writing to
    5-8  continue the hearing, the adjudicator may set a time limit for the
    5-9  continuation and, during that time, a party may file a brief,
   5-10  transcript, record, or other information with the adjudicator.  If
   5-11  the parties do not agree in writing to continue the hearing, the
   5-12  adjudicator shall declare the hearing closed.
   5-13        (d)  After the hearing is closed, the parties may submit
   5-14  additional information to the adjudicator if the parties file with
   5-15  the adjudicator a written agreement to the submission.  Information
   5-16  submitted under this subsection may be considered at the discretion
   5-17  of the adjudicator.
   5-18        Sec. 51.728.  RESOLUTION OF HEARING.  (a)  Not later than the
   5-19  30th day after the date a hearing is closed under Section 51.727 of
   5-20  this code, the adjudicator shall render a final decision on the
   5-21  matter and notify the faculty member and the president of the
   5-22  institution of higher education of the decision.  The decision must
   5-23  be in writing and discuss the evidence and reasons for the
   5-24  decision.
   5-25        (b)  Not later than the 14th day after the date a party
   5-26  receives notice of a decision under this section, the party may
   5-27  request a clarification or modification of the decision through the
    6-1  commissioner.  If the request is made, the adjudicator shall
    6-2  respond to the request not later than the seventh day after the
    6-3  date the adjudicator receives the request from the commissioner.
    6-4        (c)  On the request of an interested person, the commissioner
    6-5  shall investigate the implementation of the adjudicator's decision
    6-6  and certify to that person whether the decision has been
    6-7  implemented.
    6-8        (d)  The adjudicator shall assess the costs of the hearing
    6-9  equally against the faculty member and the institution.
   6-10        (e)  The costs may include:
   6-11              (1)  the adjudicator's fee, charged at a rate not to
   6-12  exceed $50 an hour; and
   6-13              (2)  any travel and per diem expenses incurred by the
   6-14  adjudicator in resolving the matter.
   6-15        (f)  If a stenographic record of the hearing is requested by
   6-16  a party, the costs of making the record shall be paid by that
   6-17  party.  If both parties agree to have a stenographic record of the
   6-18  hearing made, the costs of making the record shall be paid by both
   6-19  parties equally.  The stenographer shall bill these costs directly
   6-20  to the appropriate party.
   6-21        Sec. 51.729.  LEAVE.  A faculty member may take a leave of
   6-22  not more than three working days, with pay, to prepare for and to
   6-23  attend a hearing under this subchapter.
   6-24        Sec. 51.730.  DISCRIMINATION PROHIBITED.  A person may not
   6-25  discipline, penalize, or prejudice a faculty member in the faculty
   6-26  member's employment for exercising rights under this subchapter or
   6-27  coerce or restrain the faculty member in the exercise of those
    7-1  rights.
    7-2        Sec. 51.731.  FEES.  (a)  The Texas Higher Education
    7-3  Coordinating Board, to recover the administrative costs of the
    7-4  commissioner of higher education, may collect fees levied in equal
    7-5  amounts on faculty members and institutions of higher education who
    7-6  participate in hearings under this subchapter.
    7-7        (b)  An institution of higher education that is charged a fee
    7-8  under this section must pay the fee out of the institution's local
    7-9  funds, as defined by Section 51.009 of this code.
   7-10        SECTION 2.  (a)  Not later than October 1, 1993, the
   7-11  commissioner of higher education shall make initial appointments to
   7-12  the higher education grievance panel under Subchapter Q, Chapter
   7-13  51, Education Code, as added by this Act, of five members to serve
   7-14  on the panel for terms expiring December 31, 1995, five members to
   7-15  serve on the panel for terms expiring December 31, 1996, and five
   7-16  members to serve on the panel for terms expiring December 31, 1997.
   7-17        (b)  Subchapter Q, Chapter 51, Education Code, as added by
   7-18  this Act, applies only to a matter for which review has been
   7-19  initiated on or after September 1, 1993, by a faculty member in
   7-20  accordance with the internal grievance procedures of the
   7-21  institution of higher education at which the member is employed.
   7-22        SECTION 3.  This Act takes effect September 1, 1993.
   7-23        SECTION 4.  The importance of this legislation and the
   7-24  crowded condition of the calendars in both houses create an
   7-25  emergency and an imperative public necessity that the
   7-26  constitutional rule requiring bills to be read on three several
   7-27  days in each house be suspended, and this rule is hereby suspended.