Middlebury Handbook

a. General Principles

In determining whether a faculty member’s actions constitute professional misconduct, and in determining any penalties for faculty misconduct, up to and including termination, faculty members, administrators, and Trustees will act in accordance with the following principles:

1. Faculty members are expected to conform to all ethical standards of the profession, such as those enumerated in the American Association of University Professors’ Statement on Professional Ethics (https://www.aaup.org/report/statement-professional-ethics).
2. All members of the faculty, whether tenured or not, are entitled to academic freedom as set forth in the 1940 Statement of Principles on Academic Freedom and Tenure, formulated by the Association of American Colleges and Universities and the American Association of University Professors. Exercises of academic freedom, including the expression of dissent or unpopular opinions, do not constitute faculty misconduct, and cannot incur a penalty.
3. The principle of presumed innocence applies: until the process of review is complete, the faculty member is presumed innocent.
4. The grounds for a finding of faculty misconduct and imposition of penalties must be specific and concrete.
5. Criminal activity may constitute faculty misconduct where such activity could reasonably be seen to substantially compromise a faculty member's ability to carry out his or her responsibilities as a teacher, scholar, and contributor to the functioning and governing of the College.  Civil disobedience, non-violent protest, and expression of opinions, even where such activities result in civil or criminal penalties, do not amount to faculty misconduct under this section.  Crimes involving violence or deliberate and consequential dishonesty, on the other hand, may constitute misconduct.
6. The principle of proportionality applies: the penalty must be commensurate with the severity of the misconduct in question. Only the most serious violations of a faculty member’s responsibilities as a teacher, scholar, and contributor to the functioning and governance of the college, especially actions that pose an imminent threat to the safety of others and the flagrant interference with the efforts of colleagues and students to exercise their rights of free inquiry and expression, can be considered as adequate cause for termination.
7. Considerations of political opinions, race, creed, gender, sexual orientation, gender identity or expression, age, legally recognized forms of disability, or economic considerations—e.g., relating to the individual's salary level, length of contract—are absolutely prohibited in determining grounds for misconduct or assigning penalties for misconduct.
8. The principle of equal treatment should apply: instances of misconduct that are similar in nature and magnitude should be met with penalties that are similar in nature and magnitude, regardless of the identities of the faculty members involved.
9. Public perceptions and media representations of a faculty member should play no role in determining if misconduct has occurred, or in assessing any penalties that result from misconduct.
10. Faculty participation is central to the hiring and promotion of our colleagues. The principle of self-governance requires that the faculty be significantly involved in the review of a colleague accused of professional misconduct.
11. While the Board of Trustees has ultimate authority in matters involving faculty misconduct, in keeping with the principle of faculty self-governance, the Board will give considerable deference to the recommendations of the faculty and administration regarding faculty misconduct. In the event that the Board disagrees with the faculty’s or administration’s recommendations, the Board will provide a substantive written justification for its decision.

b. Definitions of Lesser Misconduct, Grounds for Termination, and Violations of the Anti-Harassment/Discrimination Policy and/or the Policy Against Sexual Misconduct, Domestic Violence, Dating Violence and Stalking

There are three categories of professional misconduct: lesser misconduct, grounds for termination, and misconduct associated with violations of the Anti-Harassment/Discrimination Policy and/or the Policy Against Sexual Misconduct, Domestic Violence, Dating Violence, and Stalking. Additionally, faculty members may face penalties (including termination) for teaching ineffectiveness, even if no misconduct has occurred. All allegations of misconduct or teaching ineffectiveness will be considered in the context of the general principles described in section a above. In all instances of alleged misconduct or teaching ineffectiveness, the faculty member will be secure in his or her right to a fair and impartial hearing.

i. Lesser misconduct. In keeping with the principle of proportionality, some professional misconduct does not constitute sufficient grounds for termination of employment. Such “lesser misconduct” includes, but is not limited to, violations of the Employee Code of Conduct that do not satisfy the specific grounds for termination set forth in section b.ii., and violations of the principles of faculty conduct set forth in section a that do not satisfy the specific grounds for termination set forth in section b.ii.

ii. Grounds for termination. Faculty on appointment for any term, including tenure, may have their appointment terminated prior to the specifications of the appointment only by special action of designated and appropriate College authorities with adequate cause and according to the procedures described below. As per the proportionality principle, termination for any reason may be undertaken only in the most exceptional circumstances and only for the most compelling reasons. Tenure is a primary protection for academic freedom and contributes to the stability necessary for the development of the College. At the same time, tenure is not simply a guarantee of appointment until retirement. Specific serious offenses may result in termination for cause. A continued pattern of teaching performance that is judged to be below minimally acceptable standards may also result in termination.

The following are considered as grounds for termination:

(a) Flagrant and deliberate violations of the rules and procedures of the Middlebury College faculty; persistent failure to carry out specified teaching assignments as these are determined by a department or by the Curriculum Committee of the College. Action cannot be taken under the latter clause against a faculty member whose academic directions have not changed but who is a member of a department that has undertaken new directions and therefore has developed new needs.

(b) Severe abuse of professional authority; deliberate coercion of others; deliberate suppression of the freedom of thought necessary in an academic community; patterns of behavior that fundamentally compromise a faculty member's ability to carry out his or her responsibilities as a teacher, scholar, and contributor to the functioning and governance of the College.

(c) Actions that are willfully destructive of College facilities or pose an imminent threat to the safety of others.

(d) Serious criminal conduct as defined in General Principles section a. v.

(e) Teaching ineffectiveness. (Procedures defined below in section f.)

iii. Violations of the Non-Discrimination Policy. Reports of misconduct that, if proven, would violate the Non-Discrimination Policy will be investigated according to the procedures described in those policies.  Sanctions, including, potentially, termination for cause and other sanctions listed in section g. of this policy, will be determined according to the procedures that are described below in that section.

c. Administrative Procedures regarding Allegations of Lesser Misconduct and/or Grounds for Termination

i. When an allegation of professional misconduct has been made, the vice president for Academic Affairs and dean of the faculty (VPAA/DoF) will make a preliminary inquiry and will discuss the matter with those administrative officers he or she deems appropriate. If the VPAA/DoF concludes that the alleged misconduct, were it to be substantiated, might constitute professional misconduct, and therefore that further inquiry is warranted, then they will meet in confidence with the accused faculty member to discuss the alleged violation. The faculty member and the VPAA/DoF may each invite an adviser of their choice, typically a tenured faculty colleague, to assist them, or to act as counsel. Under all circumstances, the VPAA/DoF will report the details of the case to the provost.

In consultation with the VPAA/DoF, the provost will then propose one of three possible outcomes:

(a)    If the provost finds no misconduct, then the faculty member will incur no penalty, contingent on the approval of the Board of Trustees as described in section c.iv.

(b)   If the provost finds grounds only for lesser misconduct (as defined in b.i.), then the provost will recommend a penalty less than termination, with subsequent procedures described in section c.ii.

(c)    If the provost finds grounds for termination (as defined in b.ii.), then the case will be directed to the Promotions Committee for a misconduct review, as described in section d.

The VPAA/DoF will inform the complainant(s) in writing whether the provost has recommended to the Board that the matter be dropped, whether a lesser penalty will be pursued, or whether a misconduct review will be initiated.

ii. If the provost finds that lesser misconduct has occurred, then, in consultation with the VPAA/DoF, the provost will recommend a penalty less than termination. If the faculty member accepts the recommended penalty, then that penalty is enacted, contingent on approval by the Board of Trustees as described in section c.iv. Alternatively, the faculty member may reject the recommended penalty, which initiates a misconduct discussion as described in section c.iii.

iii. If the faculty member rejects a recommendation for a penalty less than termination in the process described in c.ii., then the VPAA/DOF, provost, and faculty member will engage in a misconduct discussion with the aim of finding a mutually acceptable outcome. If the three parties agree on an outcome within 30 days, then that agreement shall be enacted, contingent on the final approval by the Board of Trustees as described in section c.iv. In this case, the Board will be informed of the provost’s initial penalty proposal and the outcome agreed upon in the misconduct discussion. In all other cases, the matter will be turned over to the Promotions Committee for a misconduct review, as described in section d. In this case, the Promotions Committee will be informed of the provost’s initial penalty proposal.

iv. If the faculty member, VPAA/DoF, and provost agree on either no penalty or on a penalty less than termination, and the Promotions Committee has not reviewed the matter, the provost will report the allegation and recommended outcome to the Board of Trustees. This report will not divulge the names of the faculty member or of any individuals who participated in these deliberations.

If the Board accepts the provost’s recommendation, then that recommendation will be enacted. If the Board rejects the provost’s recommendation, then the Board will identify factors that either the VPAA/DoF and/or the provost has failed to consider, and that the Board deems relevant to the case. The Board will communicate these factors to both the Promotions Committee and the provost, and the Promotions Committee will initiate the misconduct review procedures described in section d. Both the Promotions Committee and the provost will address in their written findings (as described in section d.ii.) their assessment of the specific factors that the Board of Trustees has recommended that they consider. If either the Promotions Committee or the provost disagrees with the Board as to the interpretation and importance of these considerations, they will include the grounds of this disagreement in these written findings.

d. Misconduct Review Procedures

i. Following a provost’s recommendation for a misconduct review, as described in section c.i(c), a misconduct discussion not resulting in a mutually acceptable outcome as described in section c.iii., or a Board of Trustees recommendation for a misconduct review, as described in section c.iv., the case will be turned over to the Promotions Committee. In such cases, the VPAA/DoF will promptly inform the faculty member, in writing, of the identity of the person or persons who initiated the charge, the allegation of misconduct being considered, and the sources of any information about the case. The statement given to the faculty member will be framed with due concern for the rights of the parties involved. The person or persons who initiated the charge will be informed that their identity is being revealed to the accused faculty member and that the Promotions Committee is considering the matter. Middlebury College will protect from retaliation anyone who makes a good faith effort to appropriately disclose perceived professional misconduct. However, the College reserves the right to distinguish between retaliation and ongoing performance management related to the "whistleblower."  See the College's Whistleblower policy for further elaboration.

Once the Promotions Committee has begun the misconduct review, the VPAA/DoF will make available to the committee all information pertaining to the matter that he or she possesses. The provost and the VPAA/DoF will cooperate with the committee in any inquiries the committee deems necessary. The VPAA/DoF will not otherwise participate in the Promotions Committee's proceedings or deliberations. The faculty member will be given fair opportunity to prepare and present their defense and will be permitted to call upon an adviser of their choice, typically a tenured faculty colleague, to assist them, or to act as counsel.  In the course of the review, the faculty member will have an opportunity to confront witnesses against them.

The faculty ombudsperson will attend all proceedings of the Promotions Committee that incorporate interviews or testimony in the case. The Promotions Committee will also keep the ombudsperson informed of the committee's work. The ombudsperson will keep the provost informed of the committee's work. A professional reporter will transcribe any interviews and testimony heard by the committee. All parties must agree to the content of the transcript before it becomes the official record of the proceedings.  The faculty member and the provost will each have full access to all records of interviews and testimony at the committee's proceedings as these records become available.

ii. After a full review of the case, the Promotions Committee will recommend one of three possible outcomes:

(a) If the Promotions Committee finds no grounds for misconduct, it will recommend that the faculty member incur no penalty.

(b) If the Promotions Committee finds only grounds for lesser misconduct, it will recommend a penalty less than termination.

(c) If the Promotions Committee finds grounds for termination, it will recommend that the faculty member be terminated for cause.

The Promotions Committee will inform the faculty member and provost in writing of its findings and recommendations.

The provost will consider the recommendation of the Promotions Committee. Within 14 days of receiving this recommendation, except where exigent circumstances require otherwise, the provost will present his or her own recommendation, orally and in writing, to the faculty member and to the Promotions Committee. The written findings of the Promotions Committee and the provost will be provided to the Board of Trustees. These reports will not divulge the names of the faculty member or of any individuals who participated in the review.

If the provost and the Promotions Committee recommend the same outcome, then that outcome will be enacted, contingent on approval by the Board of Trustees, as described in section d.iv. Otherwise, they will initiate a misconduct discussion as described in section d.iii.

iii. If the provost rejects the Promotions Committee’s recommendation in the process described in d.ii., then the Promotions Committee and provost will engage in a misconduct discussion with the aim of finding a mutually acceptable outcome. If the two parties agree on an outcome within 14 days, then that agreement shall be enacted, contingent on approval by the Board of Trustees as described in section d.iv. In this case, the Board will be informed of the Promotion Committee’s and provost’s initial penalty proposals and the outcome agreed upon in the misconduct discussion. In all other cases, the matter will be turned over to the Board of Trustees for a misconduct hearing, as described in section d.v. In this case, the Board will be informed of the Promotion Committee’s and provost’s initial penalty proposals.

iv. If the Promotions Committee and provost agree on a recommended outcome, then the provost will report the allegation and recommended outcome to the Board of Trustees. This report will not divulge the names of the faculty member or of any individuals who participated in these deliberations.

If the Board accepts the provost’s recommendation, then that recommendation will be enacted. The faculty member may otherwise appeal to the Board of Trustees who will conduct a Misconduct Hearing as described in section d.v. If the Board rejects the provost’s recommendation, then the Board will conduct a misconduct hearing as described in section d.v.

v. In circumstances that require the Board of Trustees to conduct a misconduct hearing, the Board will establish a Hearing Panel of at least three of its members to consider the case. The work of the Hearing Panel will include a review of all of the documentation of the case; a meeting with the faculty member who was charged; an interview with the Promotions Committee; an interview with the provost; and all further investigations and interviews that the Hearing Panel deems necessary. The faculty member will be given fair opportunity to prepare and present his or her defense, and will be permitted to call upon an adviser of their choice, typically a tenured faculty colleague, to assist them, or to act as counsel. If, in the course of its investigation, the Board identifies factors that the Promotions Committee or provost has failed to consider and that the Board deems relevant to the case, the Board will communicate these factors to both the Promotions Committee and the provost, allowing each to register any disagreements as to the interpretation and importance of these factors. A professional reporter will produce a verbatim transcript of the proceedings of the Hearing Panel. The faculty member will have full access to all records of the proceedings of the Hearing Panel. The work of the Hearing Panel must be completed within 60 days except where exigent circumstances require otherwise. If the Hearing is not completed within 60 days, the accused faculty member will be informed of the delay, the reason for it, and an expected completion date.

After the Hearing Panel completes its work, the Board of Trustees will decide on three possible outcomes:

(a)    If the Hearing Panel finds no grounds for misconduct, the faculty member will incur no penalty.

(b)   If the Hearing Panel finds only grounds for lesser misconduct, it will impose a penalty less than termination.

(c)    If the Hearing Panel finds grounds for termination, then the faculty member’s employment will be terminated with cause, and the faculty member will not be offered any subsequent employment at the College.

The Board’s decision is final and will be carried out by the provost.

vi. From the moment the provost finds grounds for professional misconduct until the time when the Board of Trustees reaches its final decision, the faculty member may end the proceedings by resigning.  When the charge against the faculty member is based in whole or in part on deliberate harm to others (e.g., harassment), however, the faculty member will not be permitted to take early retirement or resign effective at a later date in exchange for the charges being dropped.  If the faculty member chooses to resign, the resignation must take effect immediately.

vii. Whenever the Promotions Committee has conducted a misconduct review in which either it, the provost, or the Board has recommended that a faculty member’s employment be terminated, it will, at the last faculty meeting of the term in which the review has taken place, report to the voting members of the faculty: (1) the general category (according to Grounds for Termination b.ii. (a)-(e) above) of the allegations brought, and (2) whether the committee recommended that the faculty member’s employment be terminated. This report will not divulge the names of the faculty member or of any individuals having participated in the review and will be entered into the records of the faculty. If a faculty member ends a misconduct review by resigning, the cessation of the review and the reason for its cessation will be reported to all individuals having participated in the review, and to the faculty, in the manner described above.

viii. If at any point in the course of a misconduct review, it is found that the faculty member engaged in additional or more severe misconduct, but these actions were not the original basis for the misconduct review, the VPAA/DoF will be informed of the additional evidence and/or allegations. The VPAA/DoF may determine that the original misconduct review will continue for the original actions and that the more recently discovered actions will be treated as a separate allegation, subject to procedures described in section c. Alternatively, the VPAA/DoF may determine that the original and newly discovered actions should be considered as a single matter, in which case the original review will be aborted and the combined matter treated as a new allegation, subject to procedures described in section c.

e. Conflicts of interest
In the interests of maintaining the integrity of the procedures described above, the VPAA/DOF, provost, president, the faculty ombudsperson, and any member of the Promotions Committee will recuse themselves from their roles in these procedures whenever they are charged with professional misconduct in their capacity as a faculty member or face some other conflict of interest.

If a member of the Promotions Committee is recused, the Reappointments Committee will select one of its own members to fulfill the roles of the member of the Promotions Committee under investigation in the procedures described above.

If the faculty ombudsperson is recused, the alternate ombudsperson will fulfill the role of the faculty ombudsperson in the procedures described above.

If an administrator or the president is charged with professional misconduct, then the Board of Trustees will conduct its own hearing to consider whether they retain their administrative position. If the Board rescinds the administrative position and the president or administrator is a tenured faculty member, then they will subsequently be subject to the procedures described in section c.iv.

f. Teaching Ineffectiveness as Possible Grounds for Termination
Tenure cannot be an impregnable barrier against sanctions for general teaching performance that is judged by competent authorities to be below a minimally acceptable level for the College. The chairs of departments, and the VPAA/DoF bear direct responsibility to take steps to correct seriously defective teaching. If a chair has reason to believe that a faculty member's teaching performance is seriously defective, the faculty member must be directly approached on this matter and be given a written statement outlining the problems. This statement will be prepared by the chair after appropriate consultation with other members of the faculty, professionals outside the College, current students, and alumni. The chair also will consult with the VPAA/DoF in all such matters and a copy of all correspondence with the faculty member will be filed in the Office of the VPAA/DoF.

When there is reason to believe that a faculty member's teaching is seriously defective, the chair will not only advise the faculty member of this judgment, but will meet with them to see if a program can be developed that will correct the problems as perceived. The College will attempt to assist in this program.

If serious problems persist over a period of years and it is the judgment of the chair in consultation with appropriate colleagues that the faculty member has made no successful effort to correct the situation, they may recommend to the VPAA/DoF that action be initiated for a misconduct review as set forth in sectionc. In the case of misconduct related to teaching ineffectiveness, the VPAA/DoF cannot act without departmental recommendation.

g.  Administrative Procedures regarding Potential Violations of the Non-Discrimination Policy.

Reports related to faculty misconduct that, if proven, may constitute violations of the Non-Discrimination Policy will be investigated according to the procedures outlined in the applicable policy.  As described in both policies, the Human Relations Officer (HRO) will provide to the VPAA/DoF a determination as to whether any policy violations have occurred.  In these proceedings, complainants and respondents will have an equal right to be accompanied to any related meeting or hearing by an advisor of their choice; to simultaneous notification of the result of a proceeding; and to timely access to information that will be used during related meetings and hearings.

Recommended Sanctions other than Termination for Cause

If the HRO determines that a policy violation has occurred, and the VPAA/DoF, in consultation with the provost, determines that the severity of the violation does not rise to the level of termination for cause, a sanction (i.e., written reprimand, mandatory counseling, or salary freeze) will be imposed by the VPAA/DoF within 5 days of receipt of the HRO’s final finding, after any applicable appeals of the finding have been completed. This time period may be shorter or longer depending on the circumstances, including but not limited to any contractual rights of the parties. Interim measures to protect the parties may be taken while the sanction is being decided, as outlined in the Non-Discrimination Policy. The complainant or the respondent may appeal the sanction following the procedures described in the Non-Discrimination Policy, as appropriate.

Recommendation of Termination for Cause

If the HRO determines that a policy violation has occurred, and the VPAA/DoF determines, in consultation with the provost, that the severity of the violation is such that termination for cause should be considered, the sanction will be determined by the Promotions Committee.  Interim measures to protect the parties may be taken while the sanction is being decided, as outlined in the Non-Discrimination Policy. In arriving at a recommended sanction in such cases, the Promotions Committee will follow the procedures for a Misconduct Review (Faculty Misconduct, section d), with the exception that the purpose of the Misconduct Review is the determination of a sanction, not the determination of a finding.  The complainant has the same rights to participate in any such Misconduct Review as the respondent. In arriving at a determination of a sanction, the Promotions Committee will not conduct an additional investigation, but will base their decision on the HRO’s finding while also taking the complainant’s and respondent’s sanction statements into consideration. The Promotions Committee will have 14 days to conduct the Misconduct Review and recommend a sanction and/or other actions as appropriate to the provost.  The provost will have 7 days to respond to the Promotions Committee’s recommendation, at which point both the Promotions Committee’s recommendation and the provost’s recommendation will be presented to the Board of Trustees.

If the Promotions Committee and provost do not agree on a recommended outcome, then the Board will conduct a misconduct hearing.  In arriving at a recommended sanction in such cases, the Board Hearing Panel will follow the procedures for a Misconduct Hearing (Faculty Misconduct, section d.v), with the exception that the purpose of the hearing is the determination of a sanction, not the determination of a finding.  The complainant has the same rights to participate in any such Misconduct Hearing as the respondent.  The Board Hearing Panel, if convened, will have 30 days to arrive at a decision.

If the Promotions Committee and provost agree on a recommended outcome, then the provost will report the allegation and recommended outcome to the Board of Trustees.  If the Board accepts the provost’s recommendation, then that recommendation will be enacted.  Either the complainant or the respondent can, in this case, challenge the sanction by requesting a misconduct hearing by a Hearing Panel of the Board of Trustees.  If the Board rejects the provost’s recommendation, the Board will conduct a Misconduct Hearing.  The Board Hearing Panel will follow the procedures for a Misconduct Hearing (Faculty Misconduct, section d.v.), with the exception that the purpose of the hearing is the determination of a sanction, not the determination of a finding.  The complainant has the same rights to participate in any such misconduct hearing as the respondent. The Board Hearing Panel, if convened, will have 30 days to arrive at a decision.

Appealing the Sanction

The complainant and respondent each have the right to challenge the sanction as described in the appeals procedures in the Non-Discrimination Policy, as appropriate.