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.