SBHE Policy Manual Index NDUS Procedures Index Section 600 Section 601 [Recruitment] 601.1 [Presidential Search] 601.2 [Acting Chief Executive Officer] V601.04 Selection and Appointment Procedures for Full-Time Tenure Track Positions (2021) V601.05 Selection and Appointment Procedures for Practitioner Track and Adjunct Faculty (2022) Section 602 [Appointments] 602.2 [Report on Faculty Appointments] 602.3 [Job Applicant and Employee Criminal History Background Checks] 602.03 VCSU Criminal Records Check Policy (2023) Section 603 [Non-Discrimination] 603.1 [Harassment and Discrimination] V603.01.01 Prohibited Discrimination, Protected Status Harassment, Hostile Environment, Workplace Violence, and Other Misconduct (2020) 603.2 [Equal Employment Opportunity] V603.02 VCSU Equal Opportunity Employment Plan (2018) 603.3 [Nepotism] V603.03 Nepotism (2023) Section 604 [Performance Evaluations] 604.1 [Performance Evaluations Presidents] 604.2 [Performance Evaluation Chancellor] 604.3 [Performance Evaluations Benefited Employees] V604.03.01 Faculty Excellence Award (2021) Section 605 [Faculty] 605.1 [Academic Freedom and Tenure; Academic Appointments] V605.01 Faculty Appointments (2022) V605.01.01 VCSU Tenure Procedures (2020) V605.01.02 Faculty Evaluation (2021) V605.01.03 Faculty Promotion (2021) V605.01.04 Faculty Qualifications (2019) 605.2 [Standing Committee on Faculty Rights] V605.02 VCSU Standing Committee on Faculty Rights (2021) 605.3 [Non-Renewal, Termination or Dismissal of Faculty] V605.03 Nonrenewal, Termination, or Dismissal of Faculty Members (2022) 605.4 [Hearings and Appeals] 605.5 [Mediation] V605.05 Mediation (2021) V605.07 Faculty Discipline Policy (2022) V605.09 Faculty Responsibilities (2022) V605.09.01 Expectations of Faculty Course Components (2019) V605.10 Faculty Development (2022) V605.12 Class Schedules (2022) V605.13 Office Hours and Faculty Presence (2020) V605.14 Faculty Absence Reporting Policy (2022) V605.14 Faculty Absence Reporting Procedure (2022) V605.15 Reporting of Student Absence (2020) V605.16 Reporting Grades and Academic Progress (2022) V605.17 Short-Term, Non-Medical Faculty Leave (2022) Section 606 [Classification] 606.1 [Classification - Higher Education Employees] Section 607 [General] 607.0 [Application of Human Resource Policy Manual; Compensation and Benefits] 607.1 [Legal Representation] 607.4 [Sick and Dependent Leave; Family Leave] V607.04 Faculty Sick Leave (2019) V607.05 Nursing Mothers (2022) Section 608 [Employment Contracts] 608.2 [NDUS Employees - Non-Renewals and Dismissals] 608.3 [Professional Staff Compensation] Section 609 [Communications Proficiency] V609 Communications (language) Proficiency for Faculty Policy (2024) V609 Communications (language) Proficiency for Faculty Procedure (2024) Section 610 [Oath for Teachers] Section 611 [Employee Responsibility and Activities] 611.1 [Employee Responsibility & Activities: Medical Service Plan-UND Medical School] 611.2 [Employee Responsibility and Activities: Intellectual Property] V611.02 Employee Responsibility and Activities: Intellectual Property (2022) 611.5 [Employee Responsibilities and Activities Outside Employment] V611.05 External Professional Activities (2019) 611.6 [Employee Responsibility and Activities Confidential Proprietary Information] 611.8 [Employee Responsibility and Activities Research on Human Subjects] V611.08 Establishment And Structure Of An Institutional Review Board (2021) 611.9 [Selection of Textbooks and Other Curricular Materials] V611.09 Selection of Textbooks and Other Curricular Materials (2019) 611.10 [Employee Responsibility and Activities: Theft, Fraud, Abuse and Waste] 611.11 [Employee Responsibility and Activities Cellular Phones and Other Mobile Devices] V611.11 Holidays (2023) 611.12 [Use of State Vehicles] V611.14 Reporting and Investigating Theft and Fraud Policy (2009) V611.14 Reporting and Investigating Theft and Fraud Procedure (2009) V611.16 Flexible Scheduling Policy (Flex Time-Staff) (2023) V611.16 Flexible Scheduling Procedure (Flex Time-Staff) (2023) V611.18 Telework Policy (2023) Section 612 [Faculty Grievances] V612 Faculty Grievance Policies and Procedures (2022) Section 614 [Hazardous Substances Information Program] Section 615 [Drug Free Workplace] V615 VCSU Drug and Alcohol-Free Workplace Policy (2015) Section 616 [Career and Technical Program Instructor Certification Standards] Section 620 V620 Resignations (2014) Section 625 V625.01 Academic Administrative Assistant Guidelines (2022)

A. Initial Procedures Appointments to the Valley City State University faculty are made by the President of the University. Procedures used in the opening of faculty positions and in the selection of candidates are as follows: 1.    The faculty needs of each department are determined on the basis of schedule requirements, anticipated enrollment, program development and anticipated retirements, resignations, and approved leaves of absence. 2.    A position open because of a retirement or resignation should be discussed by the Chair and the Vice President for Academic Affairs to determine whether the position requires a search.  The Vice President for Academic Affairs then requests approval to search from the President.  No search can be conducted without the President’s approval. 3.    A new position request requires budget approval from the VPAA, VPBA, and President.  The department chair should develop a statement of need, using curriculum information, enrollment data and faculty loads to support the request.  Requests for new positions should be submitted to the Vice President for Academic Affairs in October, and are subject to annual budgeting guidelines/process. 4.    When the department chair receives approval to move forward, the chair will establish a search committee, prepare a vacancy notice, and develop the screening sheet for initial review. The Search Committee should include at least four faculty members, including the department chair.  The department chair should chair the search committee. The Search Committee should approve the vacancy notice and screening sheet before the position is ready to post. The Search Committee should recommend locations for advertisement. 5.    The department chair works with the Director of Human Resources to enter the position information in the software being used for faculty searches. 6.    In order for an application to be considered complete, it should include a letter of application, a resume, at least three letters of reference, and undergraduate and graduate transcripts (unofficial transcripts acceptable for application, if hired official transcripts will be required.). Departments may require additional materials as appropriate to the field of study. 7.    The position will be posted via electronic means once VCSU approvals have been secured.  The chair should work with the Director of Human Resources to place ads in appropriate locations, based on the recommendations of the Search Committee. 8.    The position must be posted for at least 20 days. 9.    The Human Resources Director will conduct initial screening for Veteran’s preference and release the applications after the closing date. 10.    The Search Committee will review all complete applications and decide which candidates merit consideration as semi-finalists.   The Search Committee may conduct email, phone or video screening sessions to limit the pool. The Committee must develop a standard set of questions to ask semi-finalists and references when contacts are made.  Contacts will be made by the Chair or by a member or members designated by the Chair. All notes taken during this process become part of the search file.  It is recommended that the search committee notify the semi-finalists of the expected salary range.  The Search Committee will choose the finalists whose complete credentials have been examined. 11.    The chair will ask permission to invite candidates to campus. B. Procedures for Conducting an Interview 1.    With the permission of the VPAA, the Chair of the committee will issue invitations for campus interviews to the finalists. The Chair of the Search Committee is responsible for scheduling the interview process. A sample interview schedule is attached. The interview may include: a. Campus tour b. City tour and local realtor c. Individual interviews with the President, VPAA, VPBA d. Teaching/research presentation e. Meet with members of the Department f. Interview with the Search Committee g. Meeting with students 2.    Meals, travel, and accommodations should be arranged by the search committee and will be paid for by the Office for Academic Affairs following guidelines in policy V806.2.1 and SBHE 806.1. As a general principal, the Academic Affairs office will reimburse for the applicant's meal and two members of the search committee. The Chair of the committee should discuss the anticipated expenses with the VPAA before inviting candidates to campus. 3.    The Chair will notify the University community of each interview prior to the candidate's arrival on campus and distribute the candidate’s vita for review. C. Appointment 1.    Recommendations for appointment to the faculty come from the Department Chair (Form #AA-32), after consultation with the Search Committee, to the Vice President for Academic Affairs. The Vice President for Academic Affairs reviews the recommendation and forwards his or her recommendation to the President of the University (Form #AA-33). The letter of appointment will be issued from the office of the Vice President for Academic Affairs and will detail the salary, rank and years of professional experience to be applied toward tenure. A copy of the letter will be sent to the Department Chair and the Vice President of Business Affairs. 3.    The Director of Human Resources inform all applicants of the final outcome of the search.  Candidates who interview on campus should receive a personal response from the department chair. 4.    After the final selection of a candidate has been made and the candidate has signed a letter of appointment, the following information should be deposited in the Human Resources Office by the Department Chair: •    All correspondence, both external and internal, relating to the position •    Relevant notes on phone calls and information contacts made by the Division Chair or Committee members concerning the candidates. 5.    The Vice President for Academic Affairs should inform the faculty that a candidate has signed the contract and also distribute a brief "Vita" of the candidate. 6.    All application materials will be kept on file for seven years, then destroyed. Required Forms: •    AA 32 Appointment Memorandum: Departmental Recommendations •    AA-33 Appointment Memorandum: Recommendation of Vice President for Academic Affairs and the President of the University Other Documents: •    Proposed Interview Schedule  Academic supporting documents can be found in OneStop. Sponsored by: Vice President for Academic Affairs Reviewed: Winter 1996 Reviewed: July 2001 Revised: October 2010 Revised: February 2021

SBHE Policy 605.1, section 4 recognizes three types of faculty appointments: tenured, probationary, and special. Selection and appointment of tenured and probationary appointments is outlined in VCSU policy V601.4; Special Appointments are used for Practitioner Track and Adjunct faculty, following the processes described below.   Practitioner Track and Adjunct faculty members must meet the same professional qualifications as full-time, tenure track members. Procedures used in identifying positions and selecting candidates are as follows:   The Department Chair determines the faculty needs of the department on the basis of schedule requirements, anticipated enrollment, and program development. For a practitioner track position request, the Department Chair requests approval via email from the VPAA, who then discusses program needs with the President. If a position is approved, the Department Chair initiates the position request to search process with HR to identify candidates. A national search is not required.  Any recruitment costs must be discussed in advance with the VPAA. The Department Chair or designee conducts the initial screening of candidates in consultation with appropriate members of the Department. After reviewing the candidates, the Department Chair or designee chooses the best candidate for the position and forwards that information to the Vice President for Academic Affairs, using form AA-32.  Formal, on campus interviews are not required. The VPAA will request approval from the President, using form AA-33, and issue a letter of appointment, A contract will be issued from the Office of the President when annual contracts are prepared.  3. For a part-time adjunct position, the Department Chair must consult with the VPAA and receive email approval from the VPAA for any new adjunct hires.  New adjunct hires must submit hiring documents through the HR adjunct faculty application process. Adjunct requests are submitted as part of the Adjunct/Overload report form each semester. Adjunct appointments will receive a letter of appointment at the start of the term outlining duties and salary. 4.  All practitioner track and adjunct faculty are required to maintain updated credential files in the Academic Affairs office. This file should include a current vita and transcripts. Required Forms AA 32 Appointment Memorandum: Divisional Recommendations AA-33 Appointment Memorandum: Recommendation of Vice President for Academic Affairs and the President of the University Forms are located in One Stop Sponsored by: Vice President for Academic Affairs  Approved: APAC June 6, 1990 Reviewed: Winter 1996 Revised: October 2010 Revised:  May 2022

The Office of Human Resources shall ensure a criminal record check is completed according to the following guidelines: A criminal history records check must be completed before a person (including students) may begin employment with VCSU according to NDUS Procedures for SBHE Policy 602.3 Job Applicant/Employee Criminal History Background Checks and any position for which a criminal history background check is determined to be necessary or appropriate. A conviction means the result of a trial or other legal proceeding ending in a judgment or determination that a person is guilty of a criminal violation, including a plea of nolo contendere or its equivalent. A record of a conviction does not automatically disqualify an applicant for a position. A criminal record shall be considered, along with other relevant information, to determine whether an applicant is qualified and fit for the position. Consideration shall be given to the nature, severity and frequency of the offense or offenses, when the offense or offenses happened and job duties and responsibilities, with particular attention to whether a criminal conviction has a direct bearing on the individual's ability to fulfill job duties and responsibilities. Human Resources; appropriate Vice President; Hiring Authority for the position; and others as deemed necessary will review the record information; chaired by Human Resources. An individual who fails to disclose criminal conviction information as required or makes a false statement during the application process may be subject to disqualification or termination of employment upon verification of falsified information. The Department of Human Resources shall certify that a criminal records check has been completed as required by this policy and, if the check reveals any discrepancies or criminal convictions, may consult Legal Counsel and make a recommendation regarding whether the background check information is cause for disqualifying the applicant. Sponsored by: Director for Human Resources  Approved: November 2009  Revised: December 2010 Revised: March 2017 Revised: April 2023

I.    Purpose and Scope  Valley City State University (VCSU) is committed to providing a safe, inclusive, and respectful, living and working environment for its students, faculty and staff members.  To this end, this policy applies to prohibited discrimination, protected status harassment, hostile environment, workplace violence, and other misconduct not covered by the Title IX Sexual Harassment Policy.      II.    Definitions  These definitions apply to terms as they are used in this policy.  A.    Advisor: Either an attorney or non-attorney advocate who advises a party.   B.    Aiding prohibited conduct: A person aids prohibited conduct, if with the intent to promote or facilitate such conduct, that person helps another person commit the prohibited conduct. C.    Attempting to commit prohibited conduct: A person attempts to commit prohibited conduct, if with the intent to commit such conduct, that person engages in conduct directly tending toward completion of the prohibited conduct. D.    Complainant: A person who is the subject of a report or initiates a formal complaint of prohibited conduct under these procedures will be designated as the “complainant.”  Both the complainant and respondent are referred to as “party” or “parties” throughout this policy. E.     Confidential resources: Confidential resources do not have an obligation to report prohibited conduct to VCSU and will not do so without the explicit consent of the complaining party. VCSU’s confidential resources are:   •    VCSU Health and Counseling Services  Director of Counseling Services; Licensed Clinical Counselor  McFarland 424  701-845-7424    •    VCSU Health Services  Director of Health Services  Mythaler Hall, first floor  701-845-7305   •    Abused Persons Outreach Center (APOC)  Victim Services and Prevention Coordinator  701-845-0078    •    F-M Rape and Abuse Crisis Center  701-293-7273 (available 24 hours)  www.raccfm.com    •    The Village (For Employees)  Employee Assistance Program   1-800-627-8220  www.VillageEAP.com    F.    Consent: Voluntary, active and clear agreement, communicated by words or actions, to participate in specific sexual activity.  Consensual sexual activity happens when each  participant willing chooses to participate. In cases where a complaint asserts that sexual activity occurred without consent, the standard is whether a sober, reasonable person in the same circumstances as the respondent should have known that the complainant did not or could not consent to the sexual activity in question. In cases where a complainant asserts that sexual activity occurred without consent, the standard is whether a sober, reasonable person in the same circumstances as the respondent should have known that the complainant did not or could not consent to the sexual activity in question. In North Dakota, the legal age of consent is 18.  This means that there can be no consent when one participant in the sexual activity is under the legal age of consent and any other participant is at or over the legal age of consent. Section III explains consent in further detail.  G.    Domestic partners: Domestic partners are unmarried couples living together in a long- term relationship.  H.    Force or threat of force: The use of force or violence, or the threat of force or violence, including, but not limited to: (1) when the respondent threatens to use force or violence on the complainant or on any other person, and the complainant under the circumstances reasonably believes that the respondent has the ability to execute that threat; or (2) when the respondent has overcome the complainant by use of superior strength or size, physical restraint or physical confinement.     I.    Hostile Environment: A hostile environment exists when conduct is sufficiently severe, persistent, or pervasive that it unreasonably interferes with, limits or deprives an individual’s participating in or benefiting from the University’s education or employment programs or activities.  Conduct must be deemed severe, persistent, or pervasive in a way that a reasonable person would find abusive, hostile, or offensive.    In evaluating whether a hostile environment exists, the University will consider the totality of known circumstances.  Factors in this consideration may include, but are not limited to: 1.    The frequency, nature, and severity of the conduct; 2.    Whether the conduct was physically threatening; 3.    The effect of the conduct on the complainant’s mental or emotional state; 4.    Whether the conduct was directed at more than one person; 5.    Whether the conduct arose in the context of other discriminatory conduct; 6.    Whether there is a power differential between the parties; and  7.    Whether the conduct implicates concerns related to academic freedom or protected speech. Because of protections afforded by academic freedom, speech and other expression occurring in the context of instruction or research will not be considered hostile unless this speech or expression also meets one or both of the following criteria: 1.    It is meant to be either abusive or humiliating toward a specific person or persons, and/or 2.    It persists despite the reasonable objection of the person or persons targeted by the speech. J.    Interim measures: Interim measures are individualized services offered as appropriate to either or both the complainant and respondent involved in an alleged incident of misconduct, prior to an investigation or while and investigation is pending.  Interim measures include counseling, modifications of work or class schedules, restrictions on contact between the parties, increased security and monitoring of certain areas of campus, and other similar accommodations. As measures needed by each party may change over time, VCSU will communicate with each party throughout the investigation to ensure that any interim measures may be modified, supplemented or withdrawn before, during or after the final outcome of any investigation. K.     Physical abuse: Physical abuse includes sexual abuse and means any of the following: (1) the knowing or reckless use of physical force, confinement, or restraint; (2) knowing, repeated, and unnecessary sleep deprivation; and/or (3) knowing or reckless behavior that creates an immediate risk of physical harm.   Physical abuse also includes the willful, purposeful denial of medication, medical care, shelter, food, or other assistance to a person who requires such things because of age, health or disability, thereby putting that person at risk of physical, mental, or emotional harm.     L.    Prohibited conduct: Prohibited conduct includes, but is not limited to: aiding prohibited  conduct, attempting to commit prohibited conduct, prohibited discrimination, protected status harassment, hostile environment, workplace violence, physical abuse, sexual exploitation, and violating an interim measure.     M.    Prohibited Discrimination: Sex, race, color, religion, physical or mental disability, pregnancy, status with regard to marriage or public assistance, sexual orientation, participation in lawful activity, or genetic information are Equal Education and Employment Opportunity (EEEO) protected classes.  Prohibited discrimination occurs when an employment or academic decision that results in negative and/or different treatment of an individual based upon his or her membership in an EEEO-protected class, such denying an opportunity that is open to others, singling a person or group for different treatment because of her, his or their EEEO-protected class status, failure to provide reasonable accommodation for a disability or religious belief or practice; reinforcing the use of stereotypes that unreasonably impacts a person’s environment or opportunities.    N.    Protected Status Harassment (Harassment): When an individual is targeted with verbal, written, visual, or physical conduct based on that person’s EEEO-protected class status that unreasonably interferes with the individual’s work or academic performance, or creates an intimidating, hostile, or offensive working, learning, living, or social environment. Protected-status harassment occurs when an individual is targeted with verbal, written, visual, or physical conduct based on that person’s EEEO-protected status that unreasonably interferes with the individual’s work or academic performance, or creates an intimidating, hostile, or offensive working, learning, living, or social environment.  The conduct constitutes harassment under any of the following conditions: 1.    The conduct is direct. 2.    Submission to the conduct is made either explicitly or implicitly a term or condition of an individual’s employment or academic status. 3.    Submission to, or rejection of, such conduct by an individual is used as the basis for an employment or academic decision affecting that person. 4.    The conduct is sufficiently severe or pervasive to alter the conditions of the complainant’s employment or academic pursuits and creates a work or educational environment that a reasonable person would find abusive.    O.    Respondent: A person accused of conduct prohibited by this policy and does not imply pre-judgment.     P.    Retaliation: Adverse action taken against an individual for making a good faith report of prohibited conduct or participating in any investigation or proceeding under the procedures.  Retaliation may include: intimidation, threats, coercion, or adverse employment or educational actions.  Retaliation may be found even when an underlying report made in good faith was not substantiated.  Retaliation may be committed by the respondent, the complainant, or any other individual or group of individuals.  Retaliation does not include good faith actions pursued in response to a report of prohibited conduct.  Acts of alleged retaliation should be reported immediately to VCSU and will be promptly investigated.    Q.    Sanctions: Penalties which may be imposed by the University upon persons who, in proper hearing processes, have been found to have committed violations of the Code of Conduct.     R.    Sexual contact: Any touching, however slight, with any object or body party, whether or not through the clothing or other covering, of the sexual or other intimate parts of the person, or the penile ejaculation or ejaculate or emission or urine or feces upon any part of the person, for the purpose of arousing or satisfying sexual or aggressive desires.     S.    Sexual exploitation: Sexual exploitation is taking advantage of another person without consent.  Examples include, but are not limited to: 1.    Observing another person when that person is nude or engaged in sexual activity without the knowledge and consent of the person observed or allowing another to observe consensual sexual activity without the knowledge and consent of all parties involved; 2.    Making, sharing, posting, streaming, or otherwise distributing any image, photography, video, or audio recording depicting or otherwise recording another person when that person is nude or engaged in sexual activity without the knowledge and consent of the person depicted or recorded. 3.    Exposing one’s genitals to another person without the consent of that person;  4.    Prostituting another person; 5.    Exposing another person to sexually transmitted infection without the knowledge and consent of the person exposed; and 6.    Causing another person to become incapacitated with the intent to making that person vulnerable to non-consensual sexual assault or sexual exploitation.   T.    Staff: An employee at Valley City State University who is not a faculty member. The following administrative positions are considered staff for purposes of this policy: President, Vice-Presidents, Chief Information Officer, Director of Marketing, Athletic Director, and Director of the Foundation.  Likewise, for purposes of this policy, coaches and assistant coaches are considered staff.    U.    Student: The term student will be interpreted to mean any person, whether or not incidentally on the University payroll, who is currently registered with the University as a degree or non-degree-seeking candidate.  The term student will be interpreted also to mean persons not officially registered, and not faculty members or other University employees, if they are:  1.    Currently enrolled in or taking classes at the University; or  2.    Currently using University facilities or property, or the property of a University-related residential organization, in connection with academic activities; or  3.    Currently on suspension from being a student of the University.    V.    Violating an Interim Measure:  A person violates an interim measure if the measure is an order by a University official and the person to whom the order applies knowingly violates any of the conditions of the order.  One common example of an order by a University official is a “no-contact” order.  W.    Weapons: Firearms, knives, explosives, or other items which are capable of inflicting serious bodily harm.  X.    Work Place Violence: Any behavior, action or statement made by an individual or group directed toward another individual, or group, that is threatening or intimidating and causes any reasonable individual who is the recipient of the behavior, action, or statement to fear for his safety and/or property.  Such violence may be in the form of, but not limited to:  1.    Causing or attempting to cause bodily injury or intimidation to another person; or   2.    Intentionally destroying or damaging any property, public or private; or  3.    Approaching or threatening another with a weapon; or   4.    Making any oral, written, or physical gesture as a threat to harm any person or property.    III.    Consent  A.    What is Consent?   Consent means voluntary, active and clear agreement, communicated by words or actions, to participate in specific sexual activity. Consensual sexual activity happens when each participant willingly chooses to participate. It is the responsibility of the person who wants to engage in a sexual activity to obtain the consent of the other person for that sexual activity. Consent may also be withdrawn or modified at any time by the use of clearly understandable words or actions.    1.    In cases where a victim asserts that sexual activity occurred without consent, the standard is whether a sober, reasonable person in the same circumstances as the accused should have known that the victim did not or could not consent to the sexual activity in question.   2.    The definition of consent does not vary based upon a person’s sex, sexual orientation, gender identity, or gender expression.  3.    Consent is best obtained through direct communication about the decision to engage in specific sexual activity. Consent need not be verbal, but verbal communication is the most reliable and effective way to seek, assess, and obtain consent. Non-verbal communication often is ambiguous. For example, heavy breathing can be a sign of arousal, but it also can be a sign of distress. To be sure, talking with sexual partners about desires, intentions, boundaries and limits can be uncomfortable, but it serves as the best foundation for respectful, healthy, positive and safe intimate relationships.  4.    When consent is withdrawn or can no longer be given, sexual activity must stop.    B.    What is Not Consent?   Consent cannot be obtained by threat of harm, coercion, intimidation, or by use or threat of force.   The lack of explicit consent does not imply consent and likewise, the lack of verbal or physical resistance does not constitute consent. Thus, silence, passivity, submission, and/or the lack of resistance (including the absence of the word “no”) do not—in and of themselves—constitute consent.   The following are factors in determining consent: 1.    The existence of a romantic or sexual relationship does not, in and of itself, constitute consent. 2.    Consent on a prior occasion does not constitute consent on a subsequent occasion. 3.    Consent to one sexual act does not constitute consent on a subsequent occasion. 4.    Consent to sexual activity with one person does not constitute consent to engage in sexual activity with another.   5.    Consent cannot be inferred from a person’s manner of dress or other contextual factors, such as alcohol consumption, dancing, or agreement to go to a private location like a bedroom. 6.    Accepting a meal, a gift, or an invitation for a date does not imply or constitute consent. 7.    Silence, passivity, or lack of resistance alone or in combination does not constitute consent. 8.    Incapacitation by the person initiating sexual activity does not in any way lessen his or her obligation to obtain consent. 9.    Consent may be withdrawn at any time.  C.    Incapacitation   Consent cannot be obtained from someone who is unable to understand the nature of the activity or give knowing consent due to circumstances. A person is mentally or physically incapacitated when that person lacks the ability to make or act on considered decisions to engage in sexual activity, i.e., when a person’s perception and/or judgment is so impaired that the person lacks the cognitive capacity to make or act on conscious decisions, including without limitation the following circumstances:  1.    The person is incapacitated due to the use or influence of alcohol or drugs, or due to a mental disability.  Alcohol and drugs can impair judgment and decision-making capacity, including the ability to rationally consider the consequences of one’s actions. The effects of alcohol and drug consumption often occur along a continuum. For example, alcohol intoxication can result in a broad range of effects, from relaxation and lowered inhibition to euphoria and memory impairment, and to disorientation and incapacitation. Incapacitation due to alcohol or drug use is a state beyond “mere” intoxication or even being drunk. Indicators of incapacitation may include inability to communicate, lack of control over physical movements, and/or lack of awareness of circumstances. An incapacitated person can also experience a blackout state during which he or she appears to give consent but does not have conscious awareness or the capacity to consent. Some medical conditions also can cause incapacitation.  2.    The person is asleep or unconscious. 3.    The person is under the legal age of consent.  In North Dakota, the legal age of consent is 18.  This means that there can be no consent when one participant in the sexual activity is under the legal age of consent and any other participant is at or over the legal age of consent.  In sum, an act will be deemed non-consensual if a person engages in sexual activity with an individual who is incapacitated, and who the person knows or reasonably should know is incapacitated, or with an individual who is asleep, unconscious, or under the legal age of consent.    IV.    Prohibited Discrimination  Sex, race, color, religion, physical or mental disability, pregnancy, status with regard to marriage or public assistance, sexual orientation, participation in lawful activity, or genetic information are Equal Education and Employment Opportunity (EEEO) protected classes.  Prohibited discrimination occurs when an employment or academic decision that results in negative and/or different treatment of an individual based upon his or her membership in an EEEO-protected class, such denying an opportunity that is open to others, singling a person or group for different treatment because of her, his or their EEEO-protected class status, failure to provide reasonable accommodation for a disability or religious belief or practice; reinforcing the use of stereotypes that unreasonably impacts a person’s environment or opportunities.  A.    Prohibited Discrimination Reports VCSU encourages individuals affected by prohibited discrimination to discuss the issues directly with those who are involved.  Sometimes individuals are unaware that their actions are offensive.  Discussing the issue openly gives each party the opportunity to discuss and resolve the issue.    If it is not safe for an individual to discuss the matter directly, the individual should report the incident immediately to a supervisor and complete a Prohibited Discrimination Report and Incident Report.  Early reporting to management is vital as it may prevent escalation.  Reporting form: Misconduct, Protected Status Harassment, Hostile Environment and Workplace Violence Form  V.    Protected Status Harassment Protected-status harassment occurs when an individual is targeted with verbal, written, visual, or physical conduct based on that person’s EEEO-protected status (sex (including pregnancy), race, color, religion, national origin, age, physical or mental disability, status with regard to marriage or public assistance, sexual orientation, gender expression, participation in lawful activity, or genetic information) that unreasonably interferes with the individual’s work or academic performance, or creates an intimidating, hostile, or offensive working, learning, living, or social environment. The conduct constitutes harassment under any of the following conditions:   1.    The conduct is direct.   2.    Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or academic status.   3.    Submission to, or rejection of, such conduct by an individual is used as the basis for an employment or academic decision affecting that person.   4.    The conduct is sufficiently severe or pervasive to alter the conditions of the complainant’s employment or academic pursuits and creates a work or educational environment that a reasonable person would find abusive.  Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality.  To be unlawful, the conduct must create an environment that would be intimidating, hostile, or offensive to reasonable people. Offensive conduct may include, but is not limited to: offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.  Harassment can occur in a variety of circumstances, including, but not limited to, the following:  1.    The harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee. 2.    The victim does not have to be the person harassed but can be anyone affected by the offensive conduct. 3.    Unlawful harassment may occur without economic injury to, or discharge of, the complainant. A.    Protected Status Harassment Reports  VCSU encourages individuals affected by harassment to discuss harassment issues directly with those who are involved.  Sometimes individuals are unaware that their actions are offensive or harassing.  Discussing the issue openly gives each party the opportunity to discuss and resolve the issue.    If it is not safe for an individual to discuss the matter directly with the harasser, the individual should report the incident immediately to a supervisor and complete a Protected Status Harassment Report and Incident Report.  Early reporting to management is vital as it may prevent escalation.  Reporting form: Misconduct, Protected Status Harassment, Hostile Environment and Workplace Violence Form  VI.    Workplace Violence Workplace violence is any behavior, action or statement made by an individual or group directed toward another individual, or group, that is threatening or intimidating and causes any reasonable individual who is the recipient of the behavior, action, or statement to fear for his safety and/or property.  Such violence may be in the form of, but not limited to:  1.    Causing or attempting to cause bodily injury or intimidation to another person; or   2.    Intentionally destroying or damaging any property, public or private; or  3.    Approaching or threatening another with a weapon; or   4.    Making any oral, written, or physical gesture or other indirect threat to emotionally, mentally, or physically harm any person or property.  A.    Workplace Violence Reports  Complaints of violence, assaults, threats and intimidation will be treated seriously and will be promptly investigated with reasonable steps taken to protect the safety and privacy of all persons involved.  Individuals who observe or experience such behavior by anyone on university premises, whether he or she is a university employee or not, are encouraged to report the incident immediately to a supervisor and complete a Workplace Violence Report and Incident Report.  Threats or assaults may require attention by law enforcement.  Individuals are encouraged to report to law enforcement.  Reporting form: Misconduct, Protected Status Harassment, Hostile Environment and Workplace Violence Form  VII.    Hostile Environment A hostile environment exists when conduct is sufficiently severe, persistent, or pervasive that it unreasonably interferes with, limits or deprives an individual’s participating in or benefiting from the University’s education or employment programs or activities.  Conduct must be deemed severe, persistent, or pervasive in a way that a reasonable person would find abusive, hostile, or offensive.    In evaluating whether a hostile environment exists, the University will consider the totality of known circumstances.  Factors in this consideration may include, but are not limited to: 1.    The frequency, nature, and severity of the conduct; 2.    Whether the conduct was physically threatening; 3.    The effect of the conduct on the complainant’s mental or emotional state; 4.    Whether the conduct was directed at more than one person; 5.    Whether the conduct arose in the context of other discriminatory conduct; 6.    Whether there is a power differential between the parties; and  7.    Whether the conduct implicates concerns related to academic freedom or protected speech. Because of protections afforded by academic freedom, speech and other expression occurring in the context of instruction or research will not be considered hostile unless this speech or expression also meets one or both of the following criteria: 1.    It is meant to be either abusive or humiliating toward a specific person or persons, and/or 2.    It persists despite the reasonable objection of the person or persons targeted by the speech. A.    Hostile Environment Reports Complaints of hostile environment will be treated seriously and will be promptly investigated with reasonable steps taken to protect the safety and privacy of all persons involved.  Individuals who observe or experience such behavior by anyone on VCSU premises, whether he or she is a VCSU employee or not, are encouraged to report the incident immediately to a supervisor and complete a Hostile Environment Report and Incident Report.  Threats or assaults may require attention by law enforcement.  Individuals are encouraged to report to law enforcement.  Reporting form: Misconduct, Protected Status Harassment, Hostile Environment and Workplace Violence Form VIII.    Other Prohibited Conduct Other prohibited conduct not already described, includes, but is not limited to: aiding prohibited conduct, attempting to commit prohibited conduct, physical abuse, sexual exploitation, and violating an interim measure.   A.    Sexual misconduct  Sexual misconduct encompasses a range of conduct. Sexual Misconduct includes sexual acts.  Sexual acts include, but are not limited to the following actions:  1.    Sexual intercourse;  2.    Sodomy (oral and/or anal);  3.    Sexual penetration with any object;  4.    Sexual touching of a person’s intimate parts (genitalia, groin, breasts, buttocks, mouth or other bodily orifice or the clothing covering them); or  5.    Compelling a person to touch his or her own or another person’s intimate parts.    Sexual misconduct ranges from sexual assault (a criminal act that the U.S. Department of Education defines as a form of sexual harassment) to conduct such as sex-oriented remarks or jokes, pressures or demands for sexual favors, implied or overt promises or threats, unwanted touching or persistent unwelcome comments, e-mails, or pictures of an insulating or degrading sexual nature, which may constitute unlawful harassment depending upon the specific circumstances and context in which the conduct occurs.  For example, sexual advances, requests for sexual favors, or sexually directed remarks or behavior constitute sexual harassment when: 1.    Submission to or rejection of such conduct is made, explicitly or implicitly, a basis for an academic or employment decision, or term or condition or either; or 2.    Such conduct directed against an individual persists despite its rejection.    This policy does not apply to full range of sexual misconduct.  This policy applies to misconduct not covered under Title IX Sexual Harassment Policy. IX.    Consensual Relationships  At times, consensual relationships may form and exist.  The relative positions of the individuals involved in the relationship will determine, what if any necessary action must be taken.  In all cases, the person in the position of greater institutional authority must promptly report to his/her department chair, supervisor, supervising vice president, and President the sexual or romantic relationship so that VCSU may, in accord with policy, assist in separating the professional relationship from the intimate relationship.  A.    Undergraduate Students Trust is essential to sound relationships between individuals of inherently unequal power. Those who teach are entrusted with guiding students, evaluating their work, giving grades for papers and courses, and recommending students to colleagues. Students depend on the integrity of their relationships with those instructors and understandably expect instructors to exercise their authority fairly. The teacher-student relationship must not be jeopardized by possible doubt of intent or fairness of professional judgment, conflicts of interest, harassment, or the appearance to others of favoritism or advantage.   In general, undergraduate students and faculty are vastly different groups of people with regard to age, scope of life experiences, developmental status, and vulnerability.  These differences impart greater obligations to those with more institutional authority. In the interests of prudence and fostering a campus environment free of sexual harassment and discrimination, this policy prohibits sexual and/or romantic relationships between faculty and undergraduates at the University regardless of whether an instructional, mentoring, research, or other University-based relationship exists or may reasonably be expected to exist in the future.   This policy prohibits sexual and/or romantic relationships between staff or employees and undergraduates at the University.  This policy also prohibits a graduate student with an academic teaching or academic supervisory role (such as teaching assistant, lecturer, or research assistant) from having a sexual and/or romantic relationship with an undergraduate student whom he or she teaches or supervises during the duration of the teaching or supervisory relationship.  For example, a graduate student serving as a teaching assistant may not have a sexual and/or romantic relationship with an undergraduate student during the duration of the course for which the graduate student is serving in that role.  In addition, this policy prohibits coaches, paid and volunteer, of varsity teams and sport clubs from having sexual and/or romantic relationships with undergraduate students on their teams as well as students not on their teams.  B.    Graduate Students  Graduate students generally are older and have had more developmental opportunities and life experiences than undergraduates.  As a result, the parameters of acceptable romantic or sexual relationships between faculty and graduate students are different than those between faculty and undergraduate students.  Although not per se prohibited, relationships between graduate students and faculty must occur within boundaries designed to ensure fairness and minimize the inappropriate exercise of authority. Often third-party witnesses to such a relationship or suspected relationship want the department chair to address the matter but remain silent out of fear of reprisal. Such individuals are encouraged to come forward and are reminded that the policy is to remove the professional connections between the members of the couple.  Thus, a faculty member is required to promptly report to his/her chair and the Vice President for Academic Affairs for the University a romantic or sexual relationship with a graduate student whom she or he teaches, advises, supervises, mentors, recommends for awards, or employment, etc. or may reasonably expect to teach, advise, etc. in the future. The chair will then work with the Human Resource Director to develop and implement a plan to mitigate actual and perceived favoritism and conflicts of interest by establishing an instructional and supervisory arrangement in which all relevant parties may have confidence.  Faculty must keep in mind that a graduate student’s initial consent to a romantic relationship does not preclude a charge of sexual misconduct in the future.  While there may be no apparent impediment to a sexual and/or romantic relationship between a faculty member and a graduate student outside each one’s disciplinary realm, students’ academic interests and pursuits often shift. Beliefs about what is consensual may also shift over time. What may appear to be consensual at one point may subsequently be interpreted as coercive, especially in hindsight and after the end of the relationship. The inherent power differential between a faculty member and a graduate student heightens the risks inherent in such relationships, prompting the University to advise strongly against them altogether even in the absence of a perceived or real conflict of interest.  In addition, any graduate student with an academic teaching or academic supervisory role is prohibited from having sexual and/or romantic relationship with a student whom he or she teaches or supervises during the duration of the teaching or supervisory relationship (e.g., a graduate student serving as a lecturer may not have a sexual and/or romantic relationship with a student who is enrolled in that course during the duration of the course).  C.    Other Imbalances of Power within the University  There are multiple imbalances of power within the University.  Examples of an unequal power dynamic include supervisor-subordinate, senior faculty member-junior faculty member, mentor-mentee, advisor-advisee, and teaching assistant-student.  While not per se prohibited, romantic and sexual relationships must occur within boundaries designed to ensure fairness and minimize the inappropriate exercise of authority.  University’s Nepotism Policies speak to some of these situations, and basic ethics and expectations of professionalism may also apply. (See Section VII. C. Related University Policy.)  D.    Pre-existing Domestic Partner Relationships Permitted  Pre-existing domestic partner relationships are permitted.  A pre-existing domestic partner relationship is a long-term committed relationship that existed prior to registering as a student.  For example, a domestic partner of a faculty member may be an undergraduate student at the University without repercussion.  Those who are involved in a pre-existing domestic partner relationship must report the relationship to the department chair, supervisor, the supervising Vice President, and the President.  X.    Application  This policy applies to prohibited conduct on any campus of the University, on any other property or facility used by it for educational purposes, or on the property of a University-related residential organization. All actions by a student that involve the use of VCSU computing and network resources from a remote location, including, but not limited to accessing email accounts, will be deemed to have occurred on campus. This policy will apply regardless of the location of the conduct where the President, or other VCSU appointed designee determines that either: 1.    The alleged prohibited conduct has occurred in the context of a VCSU program or activity; or 2.    The conduct poses a substantial threat to VCSU’s educational mission or the health or safety of VCSU community members, including potentially contributing to or creating a hostile environment on any campus of the University.   XI.    Time to File Formal Complaints   To promote timely and effective review, VCSU strongly encourages complainants and other persons with knowledge of possible violations of this policy to make reports as soon as possible, ideally within sixty days of the alleged prohibited conduct.  A delay in reporting may affective VCSU’s ability to gather relevant and reliable information, contact witnesses, investigate thoroughly, and respond meaningfully.  It may also affect VCSU’s ability to take disciplinary action against a student who has engaged in prohibited conduct. While prompt reporting is encouraged, VCSU will consider as timely any formal complaint that is filed under these procedures.  However, VCSU is limited and cannot consider a complaint against a student respondent if the respondent is no longer a student as defined by this policy, (e.g., has graduate or permanently left VCSU). If the respondent is no longer a student at the time of the formal complaint, and VCSU is, thus, unable to pursue resolution, VCSU will provide interim measures for the complainant. XII.    Retaliation and Bad Faith Complaints   VCSU prohibits retaliation by its faculty, staff, or students against a person who exercises his or her rights or responsibilities under this policy.  Any act of retaliation may be a separate violation of this policy and is subject to sanctions or discipline set forth in the Student Code of Conduct and Employee Code of Conduct.   At the same time, an individual who believes that they are aggrieved because a complaint under this policy is malicious, knowingly false, or fundamentally frivolous, may make a complaint. A party who brings such a bad faith complaint may be found to have violated this policy’s prohibition against retaliation.    XIII.    Others Who Violate this Policy May be Banned    Others found to have violated this policy may be banned from campus and/or otherwise restricted from attending or participating in University activities and programs.    XIV.    Recommendations for Complainant   A guiding principle in the reporting of misconduct is to avoid possible re-victimizing of the complainant by forcing the individual into any plan of actions.  It is recommended that a person consider each of the following: 1.    Finding a location where re-victimization will not occur; 2.    Avoiding the destruction of evidence by bathing, douching, changing clothes, or cleaning up in any way.  Preserve evidence in a paper bag for possible future action.  Also, keep copies of emails, text messages, and voice messages; 3.    Pursuing medical treatment;   4.    Pursuing counseling services with appropriate agencies (e.g., University counselor, Employee Assistance Program (EAP), or private providers).  Calling someone that is known and trusted, such as a friend or counselor, and discussing with this person the misconduct can help.   XV.    General Reporting Guidelines   All members of the VCSU community who have been subjected to prohibited conduct have the right to make a report to VCSU, local law enforcement, and/or state police, or choose not to report.   A.    Confidential Resources  There are confidential resources for individuals who are unsure whether to report misconduct or who seek counseling or other emotional support in addition to or without, making a report to VCSU.  For confidential support, one can seek assistance from the following: •    VCSU Health and Counseling Services  Director of Counseling Services; Licensed Clinical Counselor  McFarland 424  701-845-7424     •    VCSU Health Services Director of Health and Wellness Services Mythaler Hall, first floor  701-845-7305 •    Abused Persons Outreach Center (APOC)  Victim Services and Prevention Coordinator  701-845-0078    •    F-M Rape and Abuse Crisis Center  701-293-7273 (available 24 hours)  www.raccfm.com    •    The Village (For Employees)  Employee Assistance Program   1-800-627-8220  www.VillageEAP.com  Conversations with VCSU Health and Counseling Services are kept strictly confidential and, except in rare circumstances, will not be shared without explicit permission.  While conversations are confidential, these employees are required by federal law to report that an incident occurred.  The employees will not convey any personally identifiable information to the VCSU officials; however, they may share with the Vice President for Student Affairs de-identified statistical or other information regarding prohibited conduct under this policy. Medical and counseling records are privileged and confidential documents that parties will not be required to disclose.    B.    Reports to VCSU After a report is received by VCSU, VCSU will determine who will conduct the investigation.  The appointed investigator will contact the complainant, if known, or another individual reporting the prohibited conduct to offer support services, including assistance with academic, housing, transportation, employment, and other reasonable and available accommodations.  The individual will also be advised of the option to pursue a formal complaint. Reporting an incident to VCSU is private, and it does not mean the person who experienced misconduct somehow loses control of the process.  To the contrary, VCSU is here to advise on options regarding remaining anonymous, confidentiality, and VCSU’s process for investigating complaints of misconduct.  Indeed, in some cases, individuals choose not to move forward with the investigation process, but still request support services   C.    Process Privacy   To encourage parties and witnesses to fully participate, the University recognizes the importance of privacy.   It is in the best interests of all participants to maintain privacy during the process.  Parties are encouraged not to reveal information they learn in the course of their participation in the process other than for the purpose of consulting with advisors and seeking support and advice from family, clergy, health professionals, and others playing a similar role. Parties are also encouraged to request that any advisors and support persons they consult keep information related to matters under this policy private.   Parties may choose whether to disclose or discuss with others the outcome of a complaint under this policy.   The University prohibits individuals from distributing documents obtained in the course of their participation in matters under this policy and applicable procedure.   However, individuals may share these documents for the purpose of consulting with an advisor; seeking support and advice from family, clergy, health professionals, and others playing a similar role; or as part of a civil, criminal, or administrative legal proceeding.  As appropriate, VCSU, may issue an order restricting the parties from disclosing specific information.   The University will provide other participants, such as witnesses and hearing and appeal panel members, with instructions about respecting and safeguarding private information. Such persons are obliged to comply with the University’s rules regarding privacy. The University will take reasonable measures to protect the privacy of proceedings and records; however, the University cannot and does not guarantee that privacy will be maintained. Privacy does not mean that the University is constrained from divulging facts of proceedings in appropriate circumstances. Additionally, the University may publicly divulge details of an outcome if one of the parties discloses selective portions of the proceedings, or if the matter is involved in litigation.    XVI.    Reporting Procedure   VCSU’s procedures for responding to allegations depends on the nature of the incident, the relationship of the respondent to the institution, and to the extent possible, the wishes of the person bringing forward the complaint.  For instances involving students, the Vice President for Student Affairs will oversee the process.  Where no students are involved, the Vice President for Academic Affairs will oversee the process for faculty members, and the Director of Human Resources will oversee the process for staff members.  At times, individuals may have dual roles.  For example, a staff member might also be a student.  The role in which the individual was acting when the incident occurred will determine which procedure applies.  For example, if the incident occurred when the staff member was acting in his or her role as a staff member, the staff member procedure would apply.  If the staff member was acting in his or her role as a student, the student procedure would apply.  Anyone who seeks to make a misconduct complaint or report may: 1.    File a complaint or report; 2.    Request interim measures; 3.    Make an anonymous report; and/or 4.    Contact law enforcement to file a criminal complaint and to preserve physical evidence. An individual may pursue some or all these steps at the same time.  When initiating any of the above, an individual does not need to know whether they wish to request any particular course of action, nor how to label what happened.  Before or during this decision-making process, complainants and other reporting persons are encouraged a confidential resource. A.    File a Complaint or Report  Individuals are encouraged to report any alleged discrimination, protected class harassment, hostile environment, or other misconduct.     Reporting Form: Prohibited Discrimination, Protected Harassment, Hostile Environment, Workplace Violence and Other Misconduct   B.    Request Interim Measures from VCSU   A complainant may request interim measures.  Interim measures are steps taken to ensure the safety of the complainant and/or VCSU community before the final outcomes of any investigation.  Depending on the circumstances, interim measures may be modified, supplemented or withdrawn before, during or after the final outcome of any investigation.    C.    Anonymous Reporting  Any individual who believes that they have experienced misconduct or becomes aware of alleged misconduct may make an anonymous report by using the online reporting form: Reporting Form: https://myweb.vcsu.edu/anonymous-tip/ If a known complainant discloses an incident or incidents of discrimination, harassment, hostile environment, or other misconduct but asks to remain anonymous during the investigation and/or asks that VCSU refrain from investigating, the investigator will consider how to proceed, taking into account the complainant’s wishes, VCSU’s desire to provide a safe and non-discriminatory environment, and the respondent’s right to have specific notice of the allegations and an opportunity to be heard if VCSU were to take action that affects them.  In such circumstances, the investigator may arrange for limited fact-finding to better understand the context of the complaint and explore viable options for investigation, adjudication, and remediation. Because misconduct may threaten the VCSU community, in some instances VCSU may be obliged to address alleged misconduct through internal disciplinary procedures without the cooperation of the individual alleging the misconduct.  VCSU will respect the parties’ privacy to the extent possible consistent with its legal obligations and will inform the individual of its obligation to address a community safety issue.   VCSU’s ability to investigate and resolve anonymous complaints will be limited if the information contained in the anonymous complaint cannot be verified by independent information.   D.    Report to Law Enforcement  All individuals are urged to report immediately to law enforcement any conduct that may constitute a crime.  An individual who believes they have experienced misconduct may choose to report to VCSU and/or to law enforcement.  An individual may pursue either, both, or neither of these options.  Reports to VCSU and law enforcement may be made simultaneously.  To make a report to law enforcement, contact one of the following: •    911 (for emergencies) •    Valley city Policy Department 701-845-3110 •    Barnes County Sheriff Department 701-845-8530   E.    Reports Regarding Prohibited Conduct Against Students  The Procedures for Resolution of Reports Against Student under V520.02 Prohibited Discrimination, Protected Harassment, Hostile Environment, and Other Misconduct will apply where the respondent is a student who is alleged to have engaged in prohibited conduct. The procedures apply equally to all students regardless of sex, gender, sexual orientation, gender identity, or gender expression. Reports may be made to:     Vice President for Student Affairs     McFarland 209     701-845-7300    F.    Reports Regarding Prohibited Conduct Against Staff, Administration, Coaches, or Assistant Coaches  The procedure outlined in Procedures for Resolution Against Staff under V603.01.01 Prohibited Discrimination, Protected Status Harassment, Workplace Violence, Hostile Environment, and Other Misconduct will apply where the respondent is a staff member who is alleged to have committed prohibited discrimination, protected-status harassment, or retaliation. Reports may be made to: Director for Human Resources  McFarland 211  701-845-7401   G.    Reports Regarding Prohibited Conduct Against Faculty  The procedure outlined in Procedures for Resolution of Reports Against Faculty under V603.01.01 Prohibited Discrimination, Protected Harassment, Hostile Environment, Workplace Violence and Other Misconduct will apply where the respondent is a faculty member who is alleged to have committed including, but not limited to: prohibited discrimination, protected-status harassment, or retaliation.  Reports may be made to:  Vice President for Academic Affairs     McFarland 213     701-845-7200 H.    Reports Regarding Accessibility to Facilities on Campus:  For questions, concerns, or reports regarding accessibility to facilities on campus, contact the Learning Center for Students.    Disability Support Services  Vangstad 018  701-845-7207    I.    Requests for Disability Accommodation   For requests for disability accommodation, contact the Disability Support Services.  Disability Support Services  Vangstad 018  701-845-7207    J.    Reports Regarding Employee Relations and Workplace Concerns  For reports regarding employee relations and workplace concerns, where feasible, first contact the supervisor.  If resolution is not reached after discussion with the supervisor, contact the Human Resource Director.  If the Human Resource Director is the subject of the complaint, contact the Vice President for Student Affairs.  Director for Human Resources  McFarland 211  701-845-7401    VII.    References/Related Resources    A.    Federal  U.S. Department of Labor: Title IX, Education Amendments 1972  20 U.S. Code §1092 (f): Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act  34 U.S. Code §12291: Definitions and grant provisions  485(f) of the Higher Educational Act of 2008  Titles VI and VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 Violence Against Women Act  Violence Against Women Reauthorization Act (VAWA)  Civil Rights Act of 1991  Family Education Rights and Privacy Act (FERPA)  Age Discrimination in Employment Act of 1967  Rehabilitation Act of 1973 §504  Americans with Disabilities Act of 1990  34 CFR Parts 100, 106, 104 Department of Education regulations    B. State  North Dakota Human Rights Act 1983  NDCC §12.1-17-07.1 Stalking  NDCC §12.1-17-08 Consent as a Defense  NDCC § 12.1-20-02 Definitions related to Sex Offenses  NDCC §14-03-03 Void Marriages  NDCC § 14-07.1-01 Definitions related to Domestic Violence  NDCC § 15-10-56 Disciplinary proceedings—Right to counsel for students and organizations-- Appeals C. Related University Policy  NDUS 308.1 Officer and Employee Code of Conduct  NDUS 514 Due Process Requirements for Student Conduct that May Result in Suspension or Expulsion  NDUS 603.1 Harassment  NDUS 603.2 Equal Employment Opportunity  NDUS 603.3 Nepotism  NDUS 605.3 Non-Renewal, Termination or Dismissal of Faculty  NDUS 605.4 Hearing and Appeals  NDUS 605.5 Mediation  NDUS 608.2 NDUS Employees—Non-Renewals and Dismissals  NDUS 611.4 Employee Responsibility and Activities: Conflict of Interest   NDUS 612 Faculty Grievances  NDUS Human Resource Policy Manual 25:  Job Discipline/Dismissal  NDUS Human Resource Policy Manual 27:  Appeals Procedures  V308.01 VCSU Employee Code of Conduct  V520.01 Code of Student Conduct  V530.04 University Hearings and Appeals Board  V603.01.02 Hostile Work Environment  V603.01.03 Workplace Violence  V603.02 VCSU Equal Opportunity Employment Plan  V603.03 Nepotism  V605.03 Non-Renewal, Termination or Dismissal and Sanction of Faculty Members  V605.05 Mediation  V605.09 Faculty Responsibilities  V612 Faculty Grievance Policies and Procedures Procedures or Resolution of Reports Against Staff under V520.02 and V603.01.01  Prohibited Discrimination, Protected Status Harassment, Hostile Environment,  Workplace Violence, and Other Misconduct    I.    Purpose and Scope   This procedure applies to prohibited conduct as defined in V603.01.01 Prohibited Discrimination, Protected Status Harassment, Hostile Environment, Workplace Violence, and Other Misconduct.  Prohibited conduct includes but is not limited to: aiding prohibited conduct, attempting to commit prohibited conduct, prohibited discrimination, protected status harassment, hostile environment, workplace violence, physical abuse, sexual exploitation, and violating an interim measure.  This procedure also applies to misconduct not covered by the Title IX Sexual Harassment Policy and Procedure.   II.    Definitions   These definitions apply to terms as they are used in this procedure.  A.    Advisor: Either an attorney or non-attorney advocate who advises a party.   B.    Aiding prohibited conduct:  A person aids prohibited conduct, if with the intent to promote or facilitate such conduct, that person helps another person commit the prohibited conduct. C.    Attempting to commit prohibited conduct: A person attempts to commit prohibited conduct, if with the intent to commit such conduct, that person engages in conduct directly tending toward completion of the prohibited conduct.    D.    Complainant: A person who is the subject of a report or initiates a formal complaint of  prohibited conduct will be designated as the “complainant.”  Both the complainant and respondent are referred to as “party” or “parties” throughout this procedure.    E.    Confidential resources: Confidential resources do not have an obligation to report prohibited conduct to VCSU and will not do so without the explicit consent of the complaining party. VCSU’s confidential resources are:   •    VCSU Health and Counseling Services  Director of Counseling Services; Licensed Clinical Counselor  McFarland 424  701-845-7424    •    VCSU Health Services  Director of Health Services  Mythaler Hall, first floor  701-845-7305      •    Abused Persons Outreach Center (APOC)  Victim Services and Prevention Coordinator  701-845-0078    •    F-M Rape and Abuse Crisis Center  701-293-7273 (available 24 hours)  www.raccfm.com   F.    Consent: Consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.  Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity.  Silence or lack of resistance does not demonstrate consent.  The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.  The standard in determining consent is whether a sober, reasonable person in the same circumstances as the respondent should have known that the complainant did not or could not consent to the sexual activity.  The following are principles that apply to the above definition of consent: 1.    Consent to any sexual act of prior consensual sexual activity does not necessarily constitute consent to any other sexual act. 2.    Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol. 3.    Consent may be withdrawn at any time. 4.    When consent is withdrawn or can no longer be give, sexual activity must stop. 5.    Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm. a.    Examples of coercion and intimidation include using physically or emotionally manipulative conduct against the complainant or expressly or implicitly threatening the complainant or a third party with negative actions that would compel or induce a reasonable person in the complainant’s situation to engage in the sexual activity at issue.  Examples of sexual coercion include statements such as “I will ruin your reputation,” or “I will tell everyone,” or “your career (or education) at VCSU will be over,” or “I will post an image of you naked.”  b.    Examples of force or threat of harm include using physical force or a threat express or implied that would place a reasonable person in the complainant’s situation in fear of physical harm to, or kidnapping of, themselves or another person. 6.    A person is incapable of consent when they are: a.    Less than eighteen years of age; b.    Mentally disabled (a person is mentally disabled when their normal cognitive, emotional, or behavioral functioning renders them incapable of appraising their conduct); or c.    Incapacitated. i.    A person is incapacitated when they lack the ability to choose knowingly to participate in sexual activity. ii.    A person is incapacitated when they are unconscious, asleep, involuntarily restrained, physically helpless, or otherwise unable to provide consent. iii.    Someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent depending on the level of intoxication. iv.    Consent cannot be gained by taking advantage of the incapacitation of another.  In evaluating responsibility in cases of alleged incapacitation, the fact finder asks two questions: 1.    Did the respondent know that the complainant was incapacitated: If not, 2.    Should a sober, reasonable person in the respondent’s situation have known that the complainant was incapacitated?  If the answer to either of these questions is “yes,” consent was absent. 3.    If the fact finder determines based on a preponderance of the evidence that both parties were incapacitated, the person who initiated the sexual activity alleged to be nonconsensual due to incapacity is at fault.   G.    Domestic partners: Domestic partners are unmarried couples living together in a long-term relationship. H.    Force or threat of force: The use of force or violence, or the threat of force or violence, including, but not limited to: (1) when the respondent threatens to use force or violence on the complainant or on any other person, and the complainant under the circumstances reasonably believes that the respondent has the ability to execute that threat; or (2) when the respondent has overcome the complainant by use of superior strength or size, physical restraint or physical confinement.   I.    Hostile environment: A hostile environment exists when conduct is sufficiently severe, persistent, or pervasive that it unreasonably interferes with, limits or deprives an individual’s participating in or benefiting from the University’s education or employment programs or activities.  Conduct must be deemed severe, persistent, or pervasive in a way that a reasonable person would find abusive, hostile, or offensive.    In evaluating whether a hostile environment exists, the University will consider the totality of known circumstances.  Factors in this consideration may include, but are not limited to: The frequency, nature, and severity of the conduct;  Whether the conduct was physically threatening; The effect of the conduct on the complainant’s mental or emotional state; Whether the conduct was directed at more than one person; Whether the conduct arose in the context of other discriminatory conduct; Whether there is a power differential between the parties; and  Whether the conduct implicates concerns related to academic freedom or protected speech. Because of protections afforded by academic freedom, speech and other expression occurring in the context of instruction or research will not be considered hostile unless this speech or expression also meets one or both of the following criteria: It is meant to be either abusive or humiliating toward a specific person or persons, and/or It persists despite the reasonable objection of the person or persons targeted by the speech. J.    Interim measures:  Interim measures are individualized services offered as appropriate to either or both the complainant and respondent involved in an alleged incident of misconduct, prior to an investigation or while and investigation is pending.  Interim measures include counseling, modifications of work or class schedules, restrictions on contact between the parties, increased security and monitoring of certain areas of campus, and other similar accommodations. As measures needed by each party may change over time, VCSU will communicate with each party throughout the investigation to ensure that any interim measures may be modified, supplemented or withdrawn before, during or after the final outcome of any investigation. K.    Physical abuse: Physical abuse includes sexual abuse and means any of the following: (1) the knowing or reckless use of physical force, confinement, or restraint; (2) knowing, repeated, and unnecessary sleep deprivation; and/or (3) knowing or reckless behavior that creates an immediate risk of physical harm.   Physical abuse also includes the willful, purposeful denial of medication, medical care, shelter, food, or other assistance to a person who requires such things because of age, health or disability, thereby putting that person at risk of physical, mental, or emotional harm.     L.    Prohibited conduct: Prohibited conduct includes, but is not limited to: aiding prohibited  conduct, attempting to commit prohibited conduct, prohibited discrimination, protected status harassment, hostile environment, workplace violence, physical abuse, sexual exploitation, and violating an interim measure.     M.    Prohibited discrimination: Sex, race, color, religion, physical or mental disability, pregnancy, status with regard to marriage or public assistance, sexual orientation, participation in lawful activity, or genetic information are Equal Education and Employment Opportunity (EEEO) protected classes.  Prohibited discrimination occurs when an employment or academic decision that results in negative and/or different treatment of an individual based upon his or her membership in an EEEO-protected class, such denying an opportunity that is open to others, singling a person or group for different treatment because of her, his or their EEEO-protected class status, failure to provide reasonable accommodation for a disability or religious belief or practice; reinforcing the use of stereotypes that unreasonably impacts a person’s environment or opportunities   N.    Protected status harassment (harassment): When an individual is targeted with verbal, written, visual, or physical conduct based on that person’s EEEO-protected class status that unreasonably interferes with the individual’s work or academic performance, or creates an intimidating, hostile, or offensive working, learning, living, or social environment. Protected-status harassment occurs when an individual is targeted with verbal, written, visual, or physical conduct based on that person’s EEEO-protected status that unreasonably interferes with the individual’s work or academic performance, or creates an intimidating, hostile, or offensive working, learning, living, or social environment.  The conduct constitutes harassment under any of the following conditions: The conduct is direct. Submission to the conduct is made either explicitly or implicitly a term or condition of an individual’s employment or academic status. Submission to, or rejection of, such conduct by an individual is used as the basis for an employment or academic decision affecting that person. The conduct is sufficiently severe or pervasive to alter the conditions of the complainant’s employment or academic pursuits and creates a work or educational environment that a reasonable person would find abusive. O.    Respondent: A person accused of conduct prohibited by this policy and does not imply pre-judgment.     P.    Retaliation: Adverse action taken against an individual for making a good faith report of prohibited conduct or participating in any investigation or proceeding under the procedures.  Retaliation may include: intimidation, threats, coercion, or adverse employment or educational actions.  Retaliation may be found even when an underlying report made in good faith was not substantiated.  Retaliation may be committed by the respondent, the complainant, or any other individual or group of individuals.  Retaliation does not include good faith actions pursued in response to a report of prohibited conduct.  Q.    Sanctions: Penalties which may be imposed by the University upon persons who, in proper hearing processes, have been found to have committed violations of the Code of Conduct.     R.    Sexual contact: Any touching, however slight, with any object or body party, whether or not through the clothing or other covering, of the sexual or other intimate parts of the person, or the penile ejaculation or ejaculate or emission or urine or feces upon any part of the person, for the purpose of arousing or satisfying sexual or aggressive desires.  S.    Sexual exploitation: Sexual exploitation is taking advantage of another person without consent.  Examples include, but are not limited to: Observing another person when that person is nude or engaged in sexual activity without the knowledge and consent of the person observed or allowing another to observe consensual sexual activity without the knowledge and consent of all parties involved; Making, sharing, posting, streaming, or otherwise distributing any image, photography, video, or audio recording depicting or otherwise recording another person when that person is nude or engaged in sexual activity without the knowledge and consent of the person depicted or recorded. Exposing one’s genitals to another person without the consent of that person;  Prostituting another person; Exposing another person to sexually transmitted infection without the knowledge and consent of the person exposed; and Causing another person to become incapacitated with the intent to making that person vulnerable to nonconsensual sexual assault or sexual exploitation.  T.    Staff: An employee of Valley City State University who is not a faculty member.    The following administrative positions are considered staff for purposes of this procedure: President, Vice-Presidents, Chief Information Officer, Director of Marketing, Athletic Director, and Director of the Foundation, coaches and assistant coaches.    U.    Staff Personnel Board: The VCSU President will appoint three individuals to a Staff Personnel Board (Board) to hear an appeal.  V.    Student: The term student will be interpreted to mean any person, whether or not incidentally on VCSU payroll, who is currently registered with the University as a degree or non-degree-seeking candidate.  The term student will be interpreted also to mean persons not officially registered, and not faculty members or other VCSU employees, if they are:  1.    Currently enrolled in or taking classes at VCSU; or  2.    Currently using VCSU facilities or property, or the property of a University-related residential organization, in connection with academic activities; or  3.    Currently suspended from being a student of VCSU.  W.    Violating an interim measure: A person violates an interim measure if the measure is an order by a VCSU official and the person to whom the order applies knowingly violates any of the conditions of the order.  One common example of an order by a VCSU official is a “no-contact” order. X.    Weapons: Firearms, knives, explosives, or other items which are capable of inflicting serious bodily harm. Y.    Work place violence: Any behavior, action or statement made by an individual or group directed toward another individual, or group, that is threatening or intimidating and causes any reasonable individual who is the recipient of the behavior, action, or statement to fear for his safety and/or property.  Such violence may be in the form of, but not limited to: 1.    Causing or attempting to cause bodily injury or intimidation to another person; or 2.    Intentionally destroying or damaging any property, public or private; or  3.    Approaching or threatening another with a weapon; or   4.    Making any oral, written, or physical gesture as a threat to harm any person or property.    III.    Application, Time Limits, and Computation of Deadlines  A.    Application  These procedures apply to prohibited conduct by faculty on any campus of VCSU on any other property or facility used by it for educational purposes, or on the property of a VCSU related residential organization.   All actions by staff that involve the use of VCSU computing and network resources from a remote location, including but not limited to accessing email accounts, will be deemed to have occurred on campus.   These procedures will apply regardless of the location of the conduct where the President or other designated VCSU official determines that either:  1.    The alleged prohibited conduct has occurred in the context of a VCSU program or activity; or 2.    The conduct poses a substantial threat to VCSU’s educational mission or to the health or safety of VCSU community members, including potentially contributing to or creating a hostile environment on VCSU campus.   B.    Time Limit to File Formal Complaints  To promote timely and effective review, VCSU strongly encourages complainants and other persons with knowledge of possible violations of this policy to make reports as soon as possible, ideally within sixty days of the alleged prohibited conduct.  A delay in reporting may affect VCSU’s ability to gather relevant and reliable information, contact witnesses, investigate thoroughly, and respond meaningfully.  It may also affect VCSU’s ability to take disciplinary action against a student who has engaged in prohibited conduct   Students making a complaint against faculty or staff must be file the complaint within one (1) year of the alleged action.  Faculty or staff making a complaint against faculty or staff must file the complaint within six (6) months of the alleged action, with the following exception: for students bringing a complaint against faculty in the context of a subordinate-supervisory relationship between the faculty member and the student (examples: teacher assistant or research assistant), a student may file a complaint one year after no longer being under the faculty’s supervision or three years from the date of the alleged behavior, even if the student is no longer affiliated with VCSU, whichever is earlier.  If the respondent is no longer faculty or staff at the time of the formal complaint, and VCSU is, thus, unable to pursue resolution, VCSU will provide interim measures for the complainant.   C.    Determination of Deadlines  In determining any time period specified in these procedures, the day of the event, act, or default that initiates the period will be excluded.     IV.    The University’s Response to a Report of Prohibited Conduct    A.    Initial Assessment   Upon receipt of a report of alleged prohibited conduct by students, VCSU will make an initial assessment of the reported information and respond to any immediate health or safety concerns raised by the report. B.    Where the Complainant’s Identity is Known  Where the identity of the complainant is known, VCSU will ensure that the complainant receives a written explanation of all available resources and options and is offered the opportunity to meet promptly with VCSU to discuss those resources and options.  In the initial assessment and meeting or correspondent with the complainant, VCSU will: •    Assess the complainant’s safety and well-being and offer VCSU’s support and assistance through available resources; •    Informa the complainant that VCSU will maintain the complainant’s privacy to the greatest extent possible and disclose information only as necessary pursuant to these procedures; •    Inform the complainant of their right to seek medical treatment (including a sexual assault forensic examination) and explain the importance of obtaining evidence and preserving forensic and other evidence; •    Inform the complainant of their right to contact law enforcement, be assisted by VCSU in contacting law enforcement, or decline to contact law enforcement, and their right to seek a protective order; •    Inform the complainant about VCSU and community resources, including counseling, health, and mental health services, victim advocacy; •    Inform the complainant of the right to seek appropriate and available interim measures and how to request such measures; •    Inform the complainant of the right to file a formal complaint and seek resolution; provide the complainant with an overview of the these procedures; including the informal process option; and inform the complainant of the right to withdraw a formal complaint at any time and to decline or discontinue resolution at any time, but that declining to participate in an investigation and/or the hearing process may limit VCSU’s ability to investigate meaningfully and respond to a report of prohibited conduct; •    As possible and appropriate, ascertain the complainant’s preference for pursuing formal resolution, informal resolution, or neither and discuss with the complainant any concerns or barriers to participating in any investigation and resolution process;  •    Explain that VCSU prohibits retaliation, that retaliation constitutes prohibited conduct, and that VCSU will take appropriate action in response to any act of retaliation; •    Inform the complainant of their rights afforded under the Code of Conduct.   C.    Where the Complainant’s Identity is Unknown   Where a report is filed but the identity of the complainant is unknown, VCSU will assess the nature and circumstances of the report, including whether it provides information that identifies the potential complainant, the potential respondent, any witnesses, and/or any other third party with knowledge of the reported incident, and take reasonable and appropriate steps to respond to the report of prohibited conduct consistent with applicable federal and state laws and these procedures.   D.    VCSU’s Actions Following an Initial Assessment   Upon completion of the Initial Assessment, VCSU will determine the course of action as follows:  1.    Where the Complainant Seeks Resolution   When the complainant reports prohibited conduct and requests resolution, a signed, written formal complaint will be made to the Standing Committee which will promptly initiate an investigation.    2.    Where the Complainant Requests that No Formal Complaint be Pursued VCSU supports the complainant’s decision not to pursue a formal complaint and desire for anonymity. Where the complainant does not wish to pursue a formal complaint, VCSU will honor the complainant’s wishes unless doing so would impact VCSU’s ability to provide a safe environment for all members of the VCSU community, including the complainant. VCSU may consider the following factors, among others, when determining whether to honor the complainant’s wish that no resolution be pursued: the respondent’s history of misconduct; respondent’s risk of reoffending; respondent’s use of a weapon or force; and whether the complainant is a minor. Regardless of whether the complainant chooses to file or participate in a formal complaint, VCSU will assist the complainant with reasonable and available accommodations, which may include academic, housing, transportation, employment, and other accommodations.  Where no formal complaint has been filed and an interim measures impacts the respondent, the respondent will be provided with written notice of the report, which includes, as known, the date, time, and location of the allege prohibited conduct and the underlying factual allegations, including the identity of the complainant.  Therefore, certain interim measures may not be available if the complainant wishes to maintain anonymity. Where the complainant declines to participate in an investigation, VCSU’s ability to meaningfully investigate and respond to a report may be limited. 3.    University Determination that the Complainant’s Request to Not Pursue a Formal Complaint Can Be Honored   Where VCSU determines that it can honor the complainant’s request that no formal complaint be pursued, VCSU may nevertheless take other appropriate steps designed to address its effects on the complainant and the VCSU community. Upon receipt of new or additional information, VCSU may reconsider the complainant’s request that no formal complaint be pursued and initiate the resolution process.  4.    University Determination that the Complainant’s Request to Not File a Formal Complaint Cannot be Honored   Where VCSU determines that it cannot honor the complainant’s request that no formal Complaint be pursued, VCSU will promptly initiate the resolution process by making a signed, written formal complaint on behalf of the University.  VCSU will notify the complainant that it intends to proceed with a formal complaint and will take immediate action as necessary to protect and assist the complainant.   VCSU will make reasonable efforts to protect the privacy of the complainant. However, typically, the complainant’s identity would have to be disclosed as part of VCSU’s investigation.   The complainant is not required to participate in any proceedings that follow.  However, if the complainant declines to participate in an investigation and/or hearing process, VCSU’s ability to investigate meaningfully and respond to a report of prohibited conduct may be limited. 5.    Notice to Complainant and Respondent of University Actions   VCSU will promptly inform the complainant of any actions undertaken by VCSU that will directly impact the complainant, including the filing of a formal complaint. VCSU will promptly inform the complainant of any actions undertaken by VCSU that will directly impact the complainant, including the filing of a formal complaint. VCSU will promptly inform the respondent of any actions undertaken by VCSU that will directly impact the respondent, including the filing of a formal complaint or the imposition of interim measures that would directly impact the respondent, and provide an opportunity for the respondent to respond to such action(s).  Interim measures become effective when notice of the interim measures is provided. 6.    VCSU’s Right to Suspend a Staff Member Who Poses an Immediate Threat to the Health or Safety of Persons on Campus  If a staff member poses an immediate threat to the health or safety of persons on campus, VCSU reserves the right to suspend the staff member immediately and remove the staff member from campus without a hearing.  A formal hearing on the matter will take place as early as possible.  E.    Preservation of Information and Tangible Material   Preservation of information and tangible material relating to alleged prohibited conduct is essential for investigations as well as law enforcement investigations. Therefore, all persons involved in these procedures, whether as the complainant, the respondent, or a witness, are encouraged to preserve all information and tangible material relating to the alleged prohibited conduct. Examples of evidence include electronic communications (e.g., email and text messages), photographs, clothing, and medical information.  In the case of medical information, prompt examinations can be crucial to the collection of forensic or other medical evidence. Individuals who believe they have experienced sexual assault or other forms of prohibited conduct are strongly encouraged to seek immediate medical attention.   F.    Obligation to Provide Truthful Information   At all stages of the process, all VCSU community members are expected to provide truthful information. Furnishing false information to VCSU with intent to deceive is prohibited and subject to disciplinary sanctions under VCSU’s Campus Code of Conduct. This provision does not apply to reports made or information provided in good faith, even if the facts alleged are not later substantiated.     G.    Interim Measures   1.    Overview of Interim Measures   Following a report of prohibited conduct, the complainant and respondent will be provided information about a range of resources, support services, and measures to protect the safety and well-being of the parties and promote an accessible educational environment.  Some such measures are interim measures, which are utilized pending resolution of a case. Interim measures might in the form of support or accommodations for or restrictions on one or both parties. Interim measures will be designed to address a perceived risk but tailored to minimize to the extent possible the impact on the affected party or parties.   Interim measures will be designed to accomplish a number of goals: •    To support and protect the safety of the complainant, the respondent, the University’s educational environment, and the VCSU community; •    To deter retaliation; and  •    To preserve the integrity of the investigation and resolution process.  Interim measures may be issued base upon a party’s request or at VCSU’s own initiative.  In all instance, VCSU will, at its discretion, determine whether any given interim measure is reasonable and appropriate.  Interim measures are available regardless of whether a formal complaint has been filed.  Likewise, interim measures are available regardless of whether the complainant chooses to report the prohibited conduct to law enforcement. Interim measures become effective when notice of interim measures is provided.  Where a formal complainant has been filed, typically, interim measures will remain in place pending the resolution of the formal complaint. Violations of Interim Measures that are orders by a University official constitute prohibited conduct.    2.    Examples of Interim Measures   •    Potential interim measures include, but are not limited to: •    Assistance obtaining access to counseling, advocacy, or medical services; •    Assistance obtaining access to academic support and requesting academic accommodations; •    Changes in class schedules; •    Assistance requesting changes to on campus work schedules or job assignments; •    Changes to on campus housing; •    Providing an escort to complainant to promote safety on campus; •    “No-contact” orders (curtailing or prohibiting contact or communications between or among individuals). 3.    Issuance of Interim Measures   VCSU is responsible for issuing interim measures.  In issuing interim measures, VCSU will make reasonable efforts to communicate with any impacted party to address safety and emotional and physical well-being concerns. Where no formal complaint has been filed and an interim measure impacts the respondent, the respondent will be provided with written notice of the report, which includes, as known, the date, time, and location of the alleged prohibited conduct and the underlying factual allegations, including the identity of the complainant.  Therefore, certain interim measures may not be available if the complainant wishes to maintain anonymity. Interim measures are not, in and of themselves, permanent resolutions. Rather, they are actions taken by VCSU based on information known at the time that the interim measures are issued. Accordingly, VCSU has the discretion to issue, modify, or remove any interim measure at any time additional information is gathered or circumstances change.     4.    Requested Review of VCSU’s Decisions Regarding Interim Measures   Both parties may at any time request that VCSU issue, modify, or remove interim measures based upon a change in circumstance or new information that would affect the necessity of any interim measures.     H.    Pending Criminal Investigations   In cases where there is a criminal investigation, the VCSU process will run concurrently with such investigation.  VCSU may grant temporary delays reasonably requested by law enforcement for evidence gathering.     V.    Informal Resolution   Informal resolution provides the parties with a forum to discuss the complaint and seek resolution.  Complainants may choose to pursue informal resolution of their complaint.  VCSU shall assign a School Official with the authority to remedy the alleged violation (e.g. Vice President for Student Affairs, etc.) to oversee the informal resolution process.    Both parties must agree to informal resolution.  Informal resolution is entirely voluntary and either party may end informal resolution at any time.    Informal resolution is a flexible process.  The School Official will consult with both parties and make suggestions for resolution.  Both parties must agree on the suggested course of resolution.  Unlike the formal hearing process that requires the parties to be separated during the hearing, informal resolution does not require the parties to be separated.  However, either party may choose to be separated during the process.   In cases where the respondent acknowledges involvement in the sexual misconduct, the School Official shall impose an appropriate sanction for the misconduct.  If the sanction is agreeable to the parties, the informal resolution is complete, and the sanction is imposed.    In cases where the respondent does not acknowledge responsibility, the formal hearing process will apply.  VI.    Formal Complaint Process   A.    Consolidation of Reports, Formal Complaints, and Hearings VCSU has discretion to consolidate reports and complaints that are factually related into one investigation. Likewise, the hearing officer may conduct one hearing to address the factually related issues.    B.    Appointment of Hearing Officer VCSU will assign a hearing officer (e.g. Vice President for Student Affairs, etc.) to oversee and conduct the formal complaint process.  C.    Presumption of Non-Responsibility The respondent will be presumed “not responsible” unless and until the hearing officer determines the respondent is responsible. D.    Notice to Parties upon the Issuance of a Formal Complaint After a formal complaint is filed, VCSU will notify the complainant and the respondent, in writing, of the commencement of an investigation and provide both parties with a copy of the formal complaint and the related policy and procedures.  Such notice will: •    Identify the complainant and the respondent; •    Specify the alleged prohibited conduct and its date, time, and location, to the extent known; •    Specify the factual allegations pertaining to the prohibited conduct; •    Specify any sanctions that may be imposed; •    Identify the hearing officer; •    Notice of the staff’s status until the final decision is made (i.e. whether the employee is to continue working or be placed on leave of absence with pay); •    Inform the parties about the parties’ respective rights and obligations under V603.01.01 Prohibited Discrimination, Protected Status Harassment, Hostile Environment, Workplace Violence, and Other Misconduct and these procedures; •    Inform the parties of their right to seek the assistance of an advisor and a support  person for emotional support; •    Inform the parties of the range of available resources, including mental health services; •    Explain the prohibition against retaliation; and  •    Instruct the parties to preserve any potentially relevant evidence, whatever its form. The notice requirement may be waived if the respondent consents to a short notice period or for the initiation of interim measures or emergency actions.    E.    Advisors and Support Persons  Both the complainant and respondent have the right to be represented, at their own expense, by an advisor of their choice. Both the complainant and respondent have the right to a support person of their choice to provide emotional support to the party.   Advisors and support persons may be any person, including an attorney, who is not a party or witness or otherwise involved in the case.  Advisors are advocates who advise a party during the conduct proceedings.   Advisors and support persons may attend their own advisees’ meetings, such as investigative interviews, and proceedings.   Advisors and support persons may attend their own advisees’ meetings.  Such representatives may attend their own advisees’ investigative interview but may not respond to questions for their advisees and may not pose questions.  Adversarial hearings (including confrontation, cross-examination by the parties, and active advocacy by advisors) are not permitted during the investigative process.  By accepting the role of advisor or support person, all advisors and support persons agree to comply with all applicable rules, processes, and procedures, including rules regarding process privacy.    VCSU will not interfere with the parties’ rights to have an advisor and support person of their choice and fully expects advisors and support persons to adhere voluntarily to policy and procedure. In extreme cases, where the hearing officer determines that an advisor’s or support person’s conduct undermines the integrity of policy or these procedures, the advisor or support person will be prohibited from continuing to serve as advisor or support person in that case. The affected party will be permitted to obtain a substitute advisor or support person.   If the hearing officer determines that an advisor or support person has a conflict of interest, the advisor or support person will be prohibited from continuing in their role. The affected party will be permitted to obtain a substitute advisor or support person.     F.    The Parties’ Participation in the Investigation and Hearing   Both the complainant and the respondent may decline to participate in the investigation and/or hearing. However, VCSU may continue without a party’s participation, reaching findings and issuing sanctions. Additionally, a party’s decision not to participate in the investigation will limit the party’s ability to participate in the hearing and make an appeal.      G.    Overview of Investigations of a Formal Complaint   The investigation is designed to be timely, thorough, and impartial and to provide for a fair and reliable gathering of the facts.  All individuals involved in the investigation, including the complainant, the respondent, and any third-party witnesses will be treated with sensitivity and respect. The investigation will generally include individual interviews of the complainant, the respondent and relevant witnesses.  Upon completion of the investigation, the hearing officer will prepare a final investigative record and an investigative report.  The investigative record is a compilation of statements by the parties and witnesses as well as other evidence gathered by the hearing officer. The complainant and the respondent will have an equal opportunity to participate in the investigation, including an equal opportunity to be heard, submit evidence, and suggest witnesses who may have relevant information. H.    Time Frame of and Time Limitations During the Investigation   The investigation will be completed in a timely manner. Throughout the investigation, both parties will receive reasonable notice of any meetings at which their attendance is requested, and the parties will be updated at regular intervals on the status of the investigation. The hearing officer will establish reasonable time limits for the various stages of the investigation, including meetings and deadlines for any submissions or responses, and the parties must adhere to these time limits.  The parties may request extensions for good cause.  If a party declines or fails to participate in a meeting or interview, provide evidence, or suggest witnesses, the party will have waived their right to do so upon the issuance of the final investigative record and report.     I.    Standard of Proof The hearing officer will determine whether the respondent is responsible by using a preponderance of the evidence standard.  This means, that to find a respondent responsible for any prohibited conduct, the hearing officer must decide, based upon the investigation that it is more likely than not that the respondent committed all the elements of the alleged prohibited conduct.  If the hearing officer does not find the respondent responsible for any prohibited conduct under V520.02 or V603.01.01 or supplemental jurisdiction, it will dismiss the case.  If the hearing officer finds that the respondent is responsible under V502.02 or V603.01.01, it will consider appropriate sanctions and remedies.   J.    Investigation of a Formal Complaint The purpose of the investigation is to gather evidence relating to the alleged prohibited conduct and to determine whether the respondent engaged in the prohibited conduct by a preponderance of the evidence. 1.    Overview of Investigative Interview The hearing officer will separately interview the complainant and respondent. During this interview, the hearing officer will gather information from the complainant, the respondent, and other individuals who have relevant information.  As part of the investigation, the parties will have the opportunity to request in writing witnesses they would like the hearing officer to interview. The hearing officer has the discretion to determine the relevance of any proffered witnesses, and accordingly, the hearing officer will determine which witnesses to interview. All persons being interviewed, including the parties, are prohibited from recording interviews. 2.    Evidentiary Materials   The hearing officer will gather relevant available evidentiary materials, including physical evidence, documents, communications between the parties, and electronic records and media as appropriate.   The parties will have the opportunity to request in writing the evidentiary materials they would like the hearing officer to seek to obtain.   The hearing officer has the discretion to determine the relevance of any requested evidentiary materials, and, accordingly the hearing officer will determine what evidentiary materials to seek to obtain.  The hearing officer has the discretion to determine the relevancy of any requested evidentiary materials, and, accordingly, the hearing officer will determine what evidentiary materials to seek to obtain. Discovery is informal.    3.    Newly Discovered Evidence If after the completion of the investigation, a party seeks to present a witness or introduce evidence not previously introduced, the hearing officer may grant such request upon a showing that the witness or evidence is relevant, material, newly discovered, and could not have been discovered during the investigation with due diligence.  Where a hearing officer permits a party to introduce a newly discovered witness or evidence, to prevent surprise to the other party the hearing officer will give the parties time to respond to the new information. K.    The Investigation  The hearing officer will be guided, but not limited to, the following procedure:  •    Identify the respondent.  •    Identify the facts of the incident by separately interviewing the complainant and respondent.  •    How did the complainant respond to the alleged prohibited conduct?   •    What efforts, if any, were made to resolve the issue informally. (ex. Were requests made for the behavior to stop?  Were requests made to separate the individuals?)  •    Are there any witnesses or evidence the complainant wants to include in the investigation?  Witness and evidence requests must be in writing.  •    Did the complainant inform others or the supervisor of the situation?  If so, what was the response?  •    What was the frequency and type of alleged prohibited conduct?  If known, what were the dates and locations?  •    What was the professional or personal relationship, degree of control, and amount of interaction between the two parties?  •    Does the complainant know or suspects that the respondent has engaged in prohibited conduct with other individuals?  •    During the first interview with the respondent, the investigator will inform the respondent of all the charges being made, along with supporting evidence.   •    What is the respondent’s explanation of the alleged behavior?  •    Are there any witnesses or evidence the respondent wants to include in the investigation? Witness and evidence requests must be in writing.  •    Remind the respondent of VCSU’s policy against retaliation.  •    Thoroughly examine and evaluate the responses made by the respondent.  •    Provide the complainant additional information from the investigation that would be significant to the outcome of the investigation.  •    Interview, as appropriate, witnesses identified by complainant or respondent or those who observed, or were told about, the alleged prohibited conduct.  •    Remind all parties and witnesses of the need for privacy.  •    Review, as appropriate, personnel files maintained by departments; previously concluded mediation agreements; previous records of findings for the allegation of prohibited conduct; and public records.  Some instances might require giving the individual who is the subject of the file or record notice and the opportunity to object.  The Vice President of Academic Affairs or another appointed official will rule upon any objection.  As each complaint is unique, the hearing officer has discretion to determine what additional information is necessary to make a thorough investigation.    L.    Dismissal of Case by Hearing Officer  The hearing officer may dismiss a complaint and close the case where the complaint:   1.    Is not reported or filed in a timely manner.   2.    Is not supported by sufficient facts, lacks merit based upon the available evidence, or does not fall within the jurisdiction of the investigator. Similarly, the investigator may dismiss a complaint and close the case under any of the following circumstances:   3.    The complainant fails or refuses to appear or to be available for interviews or conferences as necessary.   4.    The complainant cannot be located after reasonable efforts have been made and has not responded for at least ten (10) calendar days to a notice sent by the hearing officer to his or her last known residence, office, or email address.   5.    The complainant fails to provide requested, necessary information.   6.    The complainant fails or refuses to cooperate with the investigation to the extent that the investigator is unable to reasonably resolve the charge.     The hearing officer determines that a complaint should be dismissed, the complainant will be informed of that decision, and given an opportunity to submit a written response within ten (10) working days.  When a complaint is dismissed, where appropriate, VCSU will attempt to restore the reputation of the respondent. To the extent permissible by law and VCSU policy, VCSU may take such steps as deleting records and, unless the respondent prefers otherwise, notifying persons who participated in the proceedings of the dismissal and/or making a public announcement of the outcome.  M.    Resolution by Agreement At any point in the investigation or the formal complaint process, the hearing officer or any of the parties may suggest a settlement of the matter based on the investigation up to that point.  The hearing officer or his or her designee will serve as an impartial communicator so the parties will not have direct contact.  Any information provided or discussions with the hearing officer or designee in attempts to settle the matter may not be considered part of the investigation.  If the parties do not come to an agreement regarding settlement, the formal process continues. N.    Disciplinary Action Disciplinary action for prohibited conduct, may include: 1.    Measures similar to the interim measures specified; 2.    Appropriate educational steps (such as counseling, evaluation, restitution, community service, compensation for theft and damage to personal property, alcohol or drug education, reflection papers, or directed study); 3.    Improvement plan, performance action plan; 4.    Negative comments in a performance review; 5.    Reprimand delivered either verbally or in writing; 6.    Document placed in personnel file (A document may only be placed in a personnel file after the staff member has had an opportunity to read the material and has signed that he or she has read it.  If the staff member refuses to sign the copy, a VCSU representative shall indicate on the copy that the staff member we shown the material, was requested to sign the copy, and that the staff member refused to sign the copy to be filed); 7.    Demotion; 8.    Suspension; 9.    Salary reduction or loss of salary; 10.    Restriction or loss of privileges; 11.    Dismissal. O.    Hearing Officer’s Report of Investigation Findings After concluding the investigation, the hearing officer will provide both parties with a written investigation report, which will include the following: 1.    The scope of the investigation;  2.    Summary of the findings; 3.    A detailed statement of the basis for the action; 4.    Recommendations for any corrective actions and/or sanctions including disciplinary action; 5.    Any non-punitive, preventative remedies for the complainant; 6.    Inform the parties of their right to appeal; 7.    If warranted, recommended action to restore the respondent’s reputation, such as notifying persons who participated in the investigation, and/or public announcement of the outcome. VII.    Appeals Both the complainant and respondent may appeal the outcome.  Appeals must be submitted in writing to VCSU within five (5) business days of receiving the decision. Within the five (5) business days, the appealing party may request an extension of time by submitting a request to VCSU explaining the reason(s) for the request.  VCSU will have discretion to grant such a request upon a finding of good cause for the delay. Failure to submit an appeal within the five (5) business days or any approved extension constitutes a waiver of the right to appeal. The appellant shall clearly state the reasons for the appeal and shall provide any relevant information to support the appeal. The Staff Personnel Board (board) may consider other information directly related to the appeal. A.    Staff Personnel Board The VCSU President will appoint three individuals to hear the appeal.  B.    Overview of the Hearing Process The board conducts the hearing and provides the findings of fact, conclusions and recommendations to the President.  The President makes and issues the final decision. The hearing is intended to provide the parties with a fair opportunity to present relevant information to the board who will make informed decisions regarding responsibility, sanctions, and/or remedies. The parties are entitled to provide opening statements, testimony, cross-examination, and closing statements. Throughout the hearing the parties will be separated. The hearing officer conducts all questioning. C.    Notice of Hearing The board will provide written notice of the hearing to both parties and the President, or their representatives at least twenty (20) calendar days prior to the hearing. D.    Right to Advisor and Observers Both parties are entitled to advisors of their choice and at their own expense.  Either party or the board may invite up to two observers each to attend the proceedings. E.    Newly Discovered Evidence If after the completion of the investigation, a party seeks to present a witness or introduce evidence not previously introduced, the board may grant such request upon a showing that the witness or evidence is relevant, material, newly discovered, and could not have been discovered during the investigation with due diligence. Where the board permits a party to introduce a newly discovered witness or evidence, to prevent surprise to the other party, the board will reschedule or adjourn the hearing to investigate the newly discovered witness or evidence.  The board will also allow the parties time to respond to the new information. F.    Standard of Proof The board will determine whether the respondent is responsible by using a preponderance of the evidence standard.  This means that to find the respondent responsible for any prohibited conduct, the board must decide, based upon the record as a whole that it is more likely than not that the respondent committed all the elements of the alleged prohibited conduct. If the board does not find the respondent responsible for any prohibited conduct under V520.02 or V603.01.01 or any supplemental jurisdiction, it will dismiss the case.  If the board finds that the respondent is responsible under V520.02 or V603.01.01, it will consider appropriate sanctions and remedies. G.    Stipulation Based on Written Statements The parties may agree to stipulate to a decision based on the written statements; thereby foregoing the formal hearing.  Based on the stipulations, the board will make its decision on that basis. H.    Hearing Process and Format The hearing process will be closed. The parties and their support person will not have direct contact with each other. Witnesses may be present for their own testimony. The board may establish reasonable time limits, rules, and format, providing the parties with equal opportunities to participate. The hearing officer will coordinate the hearing. Formal rules of evidence will not apply. As required by policy, the hearing will be recorded.  At its own expense either party may request a copy of the recording. Personal recordings are prohibited. Typically, the formal of the hearing will be as follows: •    Introduction of the board; •    The hearing officer will explain the hearing process, address any necessary procedural issues, and answer any questions; •    Testimony by the complainant; •    Cross-examination by the respondent; •    Testimony by the respondent; •    Cross-examination by the complainant; •    Testimony by any witnesses; •    Cross-examination of the witnesses; •    Closing statements by the complainant followed by the respondent; •    The board will take the matter under advisement to make its determination.          1.    Evidence The board may admit any evidence which is of probative value in determining the issues or if the interests of justice will best be served by admitting the evidence.  Every reasonable effort shall be made to obtain the most reliable evidence available.  The board shall grant adjournments to enable either party to investigate evidence to which a valid claim of surprise is made. 2.    Testimony Testimony is conducted through a question-and-answer format. Both parties will have the right to confront and cross-examine all witnesses. Testimony may be taken by deposition, including deposition by telephone, or witnesses my testify by telephone, facsimile, video or other electronic means upon agreement of the parties or, absent an agreement, upon request of a party and determination by the board or hearing officer that such uses does not substantially prejudice the rights of any party.  Affidavits may be received into evidence upon stipulation of the parties. The hearing officer will ask persons being questioned to affirm that they will testify truthfully. Both the complainant and the respondent may testify or decline to testify and may decide whether to testify when their turn to testify arises. 3.    Closing Statements The parties may make closing statements. This is the opportunity for the parties to suggest inferences and conclusions. The parties may not add or address information not contained in the hearing record, as the board will not consider new information.  Nor may the parties address issues that pertain to sanctions and remedies.  The board does not consider these issues when determining responsibility. The board will establish a time limit for brief oral closing statements, typically around five (5) minutes. 4.    Determination of Sanctions and Remedies If the board finds the respondent responsible, it will make recommendations for appropriate sanctions and remedies.   In determining sanctions and remedies, the board may consider:   a.    The severity of the prohibited conduct; b.    The circumstances of the prohibited conduct;   c.    The impact of the prohibited conduct and sanctions and remedies on the complainant;   d.    The impact of the prohibited conduct and sanctions and remedies on the community;   e.    The impact of the prohibited conduct and sanctions and remedies on the respondent;   f.    Prior misconduct by the respondent; and   g.    Any other mitigating, aggravating, or compelling factors.     The board may recommend one or more of the following sanctions and remedies:   a.    Measures similar to the interim measures specified;   b.    Appropriate educational steps (such as counseling, evaluation, restitution, community service, compensation for theft and damage to person or property, alcohol or drug education, reflection papers, or directed study);   c.    Improvement plan, performance action plan;  d.    Negative comments in a performance review;  e.    Reprimand delivered either verbally or in writing;  f.    Document placed in personnel file (A document may only be placed in a personnel file after the faculty member has had the opportunity to read the material and has signed that he or she has read it.  IF the faculty member refuses to sign the copy, a VCSU representative will indicate that the faculty member was shown the material, was requested to sign the copy, and the faculty member refused to sign the copy to be filed.  The faculty member may file an answer to the material.);  g.    Demotion; h.    Suspension; i.    Salary reduction or loss of salary;  j.    Restriction or loss of privileges;  k.    Dismissal.  5.    Findings of Fact, Conclusions, and Decision The findings of fact, conclusions, and the decision shall be based solely on the evidence received by the board. The board’s findings of fact, conclusions, and recommendations, with supporting reasons, shall be reported simultaneously in writing, to the VCSU President, the complainant, and the staff member or their representatives.  The President shall provide written notice of the decision, including findings of fact and reasons or conclusions based on the hearing record, to the board, the complainant, and the staff member within fifteen (15) calendar days of receiving the report. The decision will include: the specific prohibited conduct for which the respondent was found responsible and not responsible; the findings of fact; and the rationale for SCFR’s determinations regarding both responsibility and sanctions. The decision of the President is final. Both the complainant and the respondent will be informed simultaneously of any sanctions and remedies, the date by which the requirements must be satisfied (if applicable), and the consequences of failure to satisfy the requirements.   VII.    References/Related Resources A. Federal  U.S. Department of Labor: Title IX, Education Amendments 1972  20 U.S. Code §1092 (f): Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act  34 U.S. Code §12291: Definitions and grant provisions  485(f) of the Higher Educational Act of 2008  Titles VI and VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 Violence Against Women Act  Violence Against Women Reauthorization Act (VAWA)  Civil Rights Act of 1991  Family Education Rights and Privacy Act (FERPA)  Age Discrimination in Employment Act of 1967  Rehabilitation Act of 1973 §504  Americans with Disabilities Act of 1990  34 CFR Parts 100, 106, 104 Department of Education regulations  B. State  North Dakota Human Rights Act 1983  NDCC §12.1-17-07.1 Stalking  NDCC §12.1-17-08 Consent as a Defense  NDCC § 12.1-20-02 Definitions related to Sex Offenses  NDCC §14-03-03 Void Marriages  NDCC § 14-07.1-01 Definitions related to Domestic Violence  NDCC § 15-10-56 Disciplinary proceedings—Right to counsel for students and organizations—Appeals  NDCC § 54-06-21 Public employee personnel records—Administration—Access.   NDUS Human Resource Policy Manual 25: Job Discipline/Dismissal  NDUS Human Resource Policy Manual 27: Appeals Procedures  C. Related University Policy  NDUS 308.1 Officer and Employee Code of Conduct  NDUS 514 Due Process Requirements for Student Conduct that May Result in Suspension or Expulsion  NDUS 603.1 Harassment  NDUS 603.2 Equal Employment Opportunity  NDUS 603.3 Nepotism  NDUS 605.1 Academic Freedom and Tenure; Academic Appointments  NDUS 605.2 Standing Committee on Faculty Rights  NDUS 605.3 Non-Renewal, Termination or Dismissal of Faculty  NDUS 605.4 Hearing and Appeals  NDUS 605.5 Mediation  NDUS 608.2 NDUS Employees—Non-Renewals and Dismissals  NDUS 611.4 Employee Responsibility and Activities: Conflict of Interest  NDUS 612 Faculty Grievances  NDUS Procedures 607.0.7 Personnel Files  V308.01 VCSU Employee Code of Conduct  V520.01 Code of Student Conduct  V530.04 University Hearings and Appeals Board  V603.01.02 Hostile Work Environment  V603.01.03 Workplace Violence  V603.02 VCSU Equal Opportunity Employment Plan  V603.03 Nepotism  V605.02 VCSU Standing Committee on Faculty Rights  V605.03 Non-Renewal, Termination or Dismissal and Sanction of Faculty Members  V605.05 Mediation  V605.09 Faculty Responsibilities  V612 Faculty Grievance Policies and Procedures        Procedures or Resolution of Reports Against Faculty under V520.02 and V603.01.01  Prohibited Discrimination, Protected Status Harassment, Hostile Environment,  Workplace Violence, and Other Misconduct    II.    Purpose and Scope   This procedure applies to prohibited conduct as defined in V603.01.01 Prohibited Discrimination, Protected Status Harassment, Hostile Environment, Workplace Violence, and Other Misconduct.  Prohibited conduct includes but is not limited to: aiding prohibited conduct, attempting to commit prohibited conduct, prohibited discrimination, protected status harassment, hostile environment, workplace violence, physical abuse, sexual exploitation, and violating an interim measure.  This procedure also applies to misconduct not covered by the Title IX Sexual Harassment Policy and Procedure.   III.    Definitions  These definitions apply to terms as they are used in this procedure.  A.    Advisor: Either an attorney or non-attorney advocate who advises a party.   B.    Aiding prohibited conduct:  A person aids prohibited conduct, if with the intent to promote or facilitate such conduct, that person helps another person commit the prohibited conduct. C.    Attempting to commit prohibited conduct: A person attempts to commit prohibited conduct, if with the intent to commit such conduct, that person engages in conduct directly tending toward completion of the prohibited conduct.  D.    Complainant: A person who is the subject of a report or initiates a formal complaint of prohibited conduct will be designated as the “complainant.”  Both the complainant and respondent are referred to as “party” or “parties” throughout this procedure.    E.    Confidential resources: Confidential resources do not have an obligation to report prohibited conduct to VCSU and will not do so without the explicit consent of the complaining party. VCSU’s confidential resources are:   •    VCSU Health and Counseling Services  Director of Counseling Services; Licensed Clinical Counselor  McFarland 424  701-845-7424    •    VCSU Health Services  Director of Health Services  Mythaler Hall, first floor  701-845-7305   •    Abused Persons Outreach Center (APOC)  Victim Services and Prevention Coordinator  701-845-0078    •    F-M Rape and Abuse Crisis Center  701-293-7273 (available 24 hours)  www.raccfm.com    •    The Village (For Employees)  Employee Assistance Program   1-800-627-8220  www.VillageEAP.com    F.    Consent: Consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.  Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity.  Silence or lack of resistance does not demonstrate consent.  The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.  The standard in determining consent is whether a sober, reasonable person in the same circumstances as the respondent should have known that the complainant did not or could not consent to the sexual activity.  The following are principles that apply to the above definition of consent: Consent to any sexual act of prior consensual sexual activity does not necessarily constitute consent to any other sexual act. Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.  Consent may be withdrawn at any time. When consent is withdrawn or can no longer be give, sexual activity must stop. Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm. a.  Examples of coercion and intimidation include using physically or emotionally manipulative conduct against the complainant or expressly or implicitly threatening the complainant or a third party with negative actions that would compel or induce a reasonable person in the complainant’s situation to engage in the sexual activity at issue.  Examples of sexual coercion include statements such as “I will ruin your reputation,” or “I will tell everyone,” or “your career (or education) at VCSU will be over,” or “I will post an image of you naked.”  b.  Examples of force or threat of harm include using physical force or a threat express or implied that would place a reasonable person in the complainant’s situation in fear of physical harm to, or kidnapping of, themselves or another person. 6.    A person is incapable of consent when they are: a.    Less than eighteen years of age; b.    Mentally disabled (a person is mentally disabled when their normal cognitive, emotional, or behavioral functioning renders them incapable of appraising their conduct); or c.    Incapacitated. i.    A person is incapacitated when they lack the ability to choose knowingly to participate in sexual activity. ii.    A person is incapacitated when they are unconscious, asleep, involuntarily restrained, physically helpless, or otherwise unable to provide consent. iii.    Someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent depending on the level of intoxication. iv.    Consent cannot be gained by taking advantage of the incapacitation of another.  In evaluating responsibility in cases of alleged incapacitation, the fact finder asks two questions: Did the respondent know that the complainant was incapacitated: If not, Should a sober, reasonable person in the respondent’s situation have known that the complainant was incapacitated?  If the answer to either of these questions is “yes,” consent was absent. If the fact finder determines based on a preponderance of the evidence that both parties were incapacitated, the person who initiated the sexual activity alleged to be nonconsensual due to incapacity is at fault.   G.    Domestic partners: Domestic partners are unmarried couples living together in a long-term relationship. H.    Force or threat of force: The use of force or violence, or the threat of force or violence, including, but not limited to: (1) when the respondent threatens to use force or violence on the complainant or on any other person, and the complainant under the circumstances reasonably believes that the respondent has the ability to execute that threat; or (2) when the respondent has overcome the complainant by use of superior strength or size, physical restraint or physical confinement.     I.    Hostile environment: A hostile environment exists when conduct is sufficiently severe, persistent, or pervasive that it unreasonably interferes with, limits or deprives an individual’s participating in or benefiting from the University’s education or employment programs or activities.  Conduct must be deemed severe, persistent, or pervasive in a way that a reasonable person would find abusive, hostile, or offensive.    In evaluating whether a hostile environment exists, the University will consider the totality of known circumstances.  Factors in this consideration may include, but are not limited to: The frequency, nature, and severity of the conduct; Whether the conduct was physically threatening; The effect of the conduct on the complainant’s mental or emotional state; Whether the conduct was directed at more than one person; Whether the conduct arose in the context of other discriminatory conduct; Whether there is a power differential between the parties; and  Whether the conduct implicates concerns related to academic freedom or protected speech. Because of protections afforded by academic freedom, speech and other expression occurring in the context of instruction or research will not be considered hostile unless this speech or expression also meets one or both of the following criteria: It is meant to be either abusive or humiliating toward a specific person or persons, and/or It persists despite the reasonable objection of the person or persons targeted by the speech. J.    Interim measures:  Interim measures are individualized services offered as appropriate to either or both the complainant and respondent involved in an alleged incident of misconduct, prior to an investigation or while and investigation is pending.  Interim measures include counseling, modifications of work or class schedules, restrictions on contact between the parties, increased security and monitoring of certain areas of campus, and other similar accommodations. As measures needed by each party may change over time, VCSU will communicate with each party throughout the investigation to ensure that any interim measures may be modified, supplemented or withdrawn before, during or after the final outcome of any investigation. K.    Physical abuse: Physical abuse includes sexual abuse and means any of the following: (1) the knowing or reckless use of physical force, confinement, or restraint; (2) knowing, repeated, and unnecessary sleep deprivation; and/or (3) knowing or reckless behavior that creates an immediate risk of physical harm.   Physical abuse also includes the willful, purposeful denial of medication, medical care, shelter, food, or other assistance to a person who requires such things because of age, health or disability, thereby putting that person at risk of physical, mental, or emotional harm.     L.    Prohibited conduct: Prohibited conduct includes, but is not limited to: aiding prohibited  conduct, attempting to commit prohibited conduct, prohibited discrimination, harassment, hostile environment, workplace violence, physical abuse, sexual exploitation, and violating an interim measure.     M.    Prohibited discrimination: Sex, race, color, religion, physical or mental disability, pregnancy, status with regard to marriage or public assistance, sexual orientation, participation in lawful activity, or genetic information are Equal Education and Employment Opportunity (EEEO) protected classes.  Prohibited discrimination occurs when an employment or academic decision that results in negative and/or different treatment of an individual based upon his or her membership in an EEEO-protected class, such denying an opportunity that is open to others, singling a person or group for different treatment because of her, his or their EEEO-protected class status, failure to provide reasonable accommodation for a disability or religious belief or practice; reinforcing the use of stereotypes that unreasonably impacts a person’s environment or opportunities.    N.    Protected status harassment (harassment): When an individual is targeted with verbal, written, visual, or physical conduct based on that person’s EEEO-protected class status that unreasonably interferes with the individual’s work or academic performance, or creates an intimidating, hostile, or offensive working, learning, living, or social environment. Protected-status harassment occurs when an individual is targeted with verbal, written, visual, or physical conduct based on that person’s EEEO-protected status that unreasonably interferes with the individual’s work or academic performance, or creates an intimidating, hostile, or offensive working, learning, living, or social environment.  The conduct constitutes harassment under any of the following conditions: The conduct is direct. Submission to the conduct is made either explicitly or implicitly a term or condition of an individual’s employment or academic status. Submission to, or rejection of, such conduct by an individual is used as the basis for an employment or academic decision affecting that person. The conduct is sufficiently severe or pervasive to alter the conditions of the complainant’s employment or academic pursuits and creates a work or educational environment that a reasonable person would find abusive.    O.    Respondent: A person accused of conduct prohibited by this policy and does not imply pre-judgment.     P.    Retaliation: Adverse action taken against an individual for making a good faith report of prohibited conduct or participating in any investigation or proceeding under the procedures.  Retaliation may include: intimidation, threats, coercion, or adverse employment or educational actions.  Retaliation may be found even when an underlying report made in good faith was not substantiated.  Retaliation may be committed by the respondent, the complainant, or any other individual or group of individuals.  Retaliation does not include good faith actions pursued in response to a report of prohibited conduct.  Q.    Sanctions: Penalties which may be imposed by the University upon persons who, in proper hearing processes, have been found to have committed violations of the Code of Conduct.  R.    Sexual contact: Any touching, however slight, with any object or body party, whether or not through the clothing or other covering, of the sexual or other intimate parts of the person, or the penile ejaculation or ejaculate or emission or urine or feces upon any part of the person, for the purpose of arousing or satisfying sexual or aggressive desires.  S.    Sexual exploitation: Sexual exploitation is taking advantage of another person without consent.  Examples include, but are not limited to: Observing another person when that person is nude or engaged in sexual activity without the knowledge and consent of the person observed or allowing another to observe consensual sexual activity without the knowledge and consent of all parties involved; Making, sharing, posting, streaming, or otherwise distributing any image, photography, video, or audio recording depicting or otherwise recording another person when that person is nude or engaged in sexual activity without the knowledge and consent of the person depicted or recorded. Exposing one’s genitals to another person without the consent of that person;  Prostituting another person; Exposing another person to sexually transmitted infection without the knowledge and consent of the person exposed; and Causing another person to become incapacitated with the intent to making that person vulnerable to nonconsensual sexual assault or sexual exploitation. T.    Standing Committee on Faculty Rights: Standing Committee on Faculty Rights (SCFR) consists of five tenured faculty members who are elected by the faculty for staggered five-year terms.  U.    Staff: An employee of Valley City State University who is not a faculty member.  The following administrative positions are considered staff for purposes of this procedure: President, Vice-Presidents, Chief Information Officer, Director of Marketing, Athletic Director, and Director of the Foundation.  Likewise, for purposes of this procedure, coaches and assistant coaches are considered staff.     V.    Student: The term student will be interpreted to mean any person, whether or not incidentally on the University payroll, who is currently registered with the University as a degree or non-degree-seeking candidate.  The term student will be interpreted also to mean persons not officially registered, and not faculty members or other University employees, if they are:  1.    Currently enrolled in or taking classes at the University; or  2.    Currently using University facilities or property, or the property of a University-related residential organization, in connection with academic activities; or  3.    Currently suspended from being a student of the University.  W.    Violating an interim measure: A person violates an interim measure if the measure is an order by a University official and the person to whom the order applies knowingly violates any of the conditions of the order.  One common example of an order by a University official is a “no-contact” order X.    Weapons: Firearms, knives, explosives, or other items which are capable of inflicting serious bodily harm. Y.    Work place violence: Any behavior, action or statement made by an individual or group directed toward another individual, or group, that is threatening or intimidating and causes any reasonable individual who is the recipient of the behavior, action, or statement to fear for his safety and/or property.  Such violence may be in the form of, but not limited to: Causing or attempting to cause bodily injury or intimidation to another person; or Intentionally destroying or damaging any property, public or private; or  Approaching or threatening another with a weapon; or   Making any oral, written, or physical gesture as a threat to harm any person or property.    IV.    Application, Time Limits, and Computation of Deadlines   A.    Application  These procedures apply to prohibited conduct by faculty on any campus of VCSU on any other property or facility used by it for educational purposes, or on the property of a VCSU related residential organization.   All actions by faculty that involve the use of the University computing and network resources from a remote location, including but not limited to accessing email accounts, will be deemed to have occurred on campus.   These procedures will apply regardless of the location of the conduct where the President or other designated VCSU official determines that either:  The alleged prohibited conduct has occurred in the context of a VCSU program or activity; or The conduct poses a substantial threat to VCSU’s educational mission or to the health or safety of VCSU community members, including potentially contributing to or creating a hostile environment on VCSU campus.   B.    Time Limit to File Formal Complaints  To promote timely and effective review, VCSU strongly encourages complainants and other persons with knowledge of possible violations of this policy to make reports as soon as possible, ideally within sixty days of the alleged prohibited conduct.  A delay in reporting may affect VCSU’s ability to gather relevant and reliable information, contact witnesses, investigate thoroughly, and respond meaningfully.  It may also affect VCSU’s ability to take disciplinary action against a student who has engaged in prohibited conduct   Students making a complaint against faculty or staff must be file the complaint within one (1) year of the alleged action.  Faculty or staff making a complaint against faculty or staff must file the complaint within six (6) months of the alleged action, with the following exception: for students bringing a complaint against faculty in the context of a subordinate-supervisory relationship between the faculty member and the student (examples: teacher assistant or research assistant), a student may file a complaint one year after no longer being under the faculty’s supervision or three years from the date of the alleged behavior, even if the student is no longer affiliated with the University, whichever is earlier.  If the respondent is no longer faculty or staff at the time of the formal complaint, and VCSU is, thus, unable to pursue resolution, VCSU will provide interim measures for the complainant.   C.    Determination of Deadlines  In determining any time period specified in these procedures, the day of the event, act, or default that initiates the period will be excluded.     V.    The University’s Response to a Report of Prohibited Conduct    A.    Initial Assessment   Upon receipt of a report of alleged prohibited conduct by students, VCSU will make an initial assessment of the reported information and respond to any immediate health or safety concerns raised by the report.   B.    Where the Complainant’s Identity is Known  Where the identity of the complainant is known, VCSU will ensure that the complainant receives a written explanation of all available resources and options and is offered the opportunity to meet promptly with VCSU to discuss those resources and options.  In the initial assessment and meeting or correspondent with the complainant, VCSU will: •    Assess the complainant’s safety and well-being and offer VCSU’s support and assistance through available resources; •    Informa the complainant that VCSU will maintain the complainant’s privacy to the greatest extent possible and disclose information only as necessary pursuant to these procedures; •    Inform the complainant of their right to seek medical treatment (including a sexual assault forensic examination) and explain the importance of obtaining evidence and preserving forensic and other evidence; •    Inform the complainant of their right to contact law enforcement, be assisted by VCSU in contacting law enforcement, or decline to contact law enforcement, and their right to seek a protective order; •    Inform the complainant about VCSU and community resources, including counseling, health, and mental health services, victim advocacy; •    Inform the complainant of the right to seek appropriate and available interim measures and how to request such measures; •    Inform the complainant of the right to file a formal complaint and seek resolution; provide the complainant with an overview of the these procedures; including the informal process option; and inform the complainant of the right to withdraw a formal complaint at any time and to decline or discontinue resolution at any time, but that declining to participate in an investigation and/or the hearing process may limit VCSU’s ability to investigate meaningfully and respond to a report of prohibited conduct; •    As possible and appropriate, ascertain the complainant’s preference for pursuing formal resolution, informal resolution, or neither and discuss with the complainant any concerns or barriers to participating in any investigation and resolution process;  •    Explain that VCSU prohibits retaliation, that retaliation constitutes prohibited conduct, and that VCSU will take appropriate action in response to any act of retaliation; •    Inform the complainant of their rights afforded under the Code of Conduct.   C.    Where the Complainant’s Identity is Unknown   Where a report is filed but the identity of the complainant is unknown, VCSU will assess the nature and circumstances of the report, including whether it provides information that identifies the potential complainant, the potential respondent, any witnesses, and/or any other third party with knowledge of the reported incident, and take reasonable and appropriate steps to respond to the report of prohibited conduct consistent with applicable federal and state laws and these procedures.     D.    VCSU’s Actions Following an Initial Assessment   Upon completion of the Initial Assessment, VCSU will determine the course of action as follows:  1.    Where the Complainant Seeks Resolution   When the complainant reports prohibited conduct and requests resolution, a signed, written formal complaint will be made to the Standing Committee which will promptly initiate an investigation.  2.    Where the Complainant Requests that No Formal Complaint be Pursued VCSU supports the complainant’s decision not to pursue a formal complaint and desire for anonymity. Where the complainant does not wish to pursue a formal complaint, VCSU will honor the complainant’s wishes unless doing so would impact VCSU’s ability to provide a safe environment for all members of the VCSU community, including the complainant. VCSU may consider the following factors, among others, when determining whether to honor the complainant’s wish that no resolution be pursued: the respondent’s history of misconduct; respondent’s risk of reoffending; respondent’s use of a weapon or force; and whether the complainant is a minor. Regardless of whether the complainant chooses to file or participate in a formal complaint, VCSU will assist the complainant with reasonable and available accommodations, which may include academic, housing, transportation, employment, and other accommodations.  Where no formal complaint has been filed and an interim measures impacts the respondent, the respondent will be provided with written notice of the report, which includes, as known, the date, time, and location of the allege prohibited conduct and the underlying factual allegations, including the identity of the complainant.  Therefore, certain interim measures may not be available if the complainant wishes to maintain anonymity. Where the complainant declines to participate in an investigation, VCSU’s ability to meaningfully investigate and respond to a report may be limited. 3.    University Determination that the Complainant’s Request to Not Pursue a Formal Complaint Can Be Honored  Where VCSU determines that it can honor the complainant’s request that no formal complaint be pursued, VCSU may nevertheless take other appropriate steps designed to address its effects on the complainant and the VCSU community. Upon receipt of new or additional information, VCSU may reconsider the complainant’s request that no formal complaint be pursued and initiate the resolution process.  4.    University Determination that the Complainant’s Request to Not File a Formal Complaint Cannot be Honored  Where VCSU determines that it cannot honor the complainant’s request that no formal complaint be pursued, VCSU will promptly initiate the resolution process by making a signed, written formal complaint on behalf of the University.  VCSU will notify the complainant that it intends to proceed with a formal complaint and will take immediate action as necessary to protect and assist the complainant.   VCSU will make reasonable efforts to protect the privacy of the complainant. However, typically, the complainant’s identity would have to be disclosed as part of VCSU’s investigation.   The complainant is not required to participate in any proceedings that follow.  However, if the complainant declines to participate in an investigation and/or hearing process, VCSU’s ability to investigate meaningfully and respond to a report of prohibited conduct may be limited. 5.    Notice to Complainant and Respondent of University Actions   VCSU will promptly inform the complainant of any actions undertaken by VCSU that will directly impact the complainant, including the filing of a formal complaint. VCSU will promptly inform the complainant of any actions undertaken by VCSU that will directly impact the complainant, including the filing of a formal complaint. VCSU will promptly inform the respondent of any actions undertaken by VCSU that will directly impact the respondent, including the filing of a formal complaint or the imposition of interim measures that would directly impact the respondent, and provide an opportunity for the respondent to respond to such action(s).  Interim measures become effective when notice of the interim measures is provided. 6.    VCSU’s Right to Suspend a Faculty Member Who Poses an Immediate Threat to the Health or Safety of Persons on Campus  If a faculty member poses an immediate threat to the health or safety of persons on campus, VCSU reserves the right to suspend the faculty member immediately and remove the faculty member from campus without a hearing.  A formal hearing on the matter will take place as early as possible.  F.    Preservation of Information and Tangible Material   Preservation of information and tangible material relating to alleged prohibited conduct is essential for investigations as well as law enforcement investigations. Therefore, all persons involved in these procedures, whether as the complainant, the respondent, or a witness, are encouraged to preserve all information and tangible material relating to the alleged prohibited conduct. Examples of evidence include electronic communications (e.g., email and text messages), photographs, clothing, and medical information.  In the case of medical information, prompt examinations can be crucial to the collection of forensic or other medical evidence. Individuals who believe they have experienced sexual assault or other forms of prohibited conduct are strongly encouraged to seek immediate medical attention.    G.    Obligation to Provide Truthful Information   At all stages of the process, all VCSU community members are expected to provide truthful information. Furnishing false information to VCSU with intent to deceive is prohibited and subject to disciplinary sanctions under VCSU’s Campus Code of Conduct. This provision does not apply to reports made or information provided in good faith, even if the facts alleged are not later substantiated.     H.    Interim Measures   1.    Overview of Interim Measures   Following a report of prohibited conduct, the complainant and respondent will be provided information about a range of resources, support services, and measures to protect the safety and well-being of the parties and promote an accessible educational environment.  Some such measures are interim measures, which are utilized pending resolution of a case. Interim measures might in the form of support or accommodations for or restrictions on one or both parties. Interim measures will be designed to address a perceived risk but tailored to minimize to the extent possible the impact on the affected party or parties.   Interim measures will be designed to accomplish a number of goals: •    To support and protect the safety of the complainant, the respondent, the University’s educational environment, and the VCSU community; •    To deter retaliation; and  •    To preserve the integrity of the investigation and resolution process. Interim measures may be issued base upon a party’s request or at VCSU’s own initiative.  In all instance, VCSU will, at its discretion, determine whether any given interim measure is reasonable and appropriate.  Interim measures are available regardless of whether a formal complaint has been filed.  Likewise, interim measures are available regardless of whether the complainant chooses to report the prohibited conduct to law enforcement. Interim measures become effective when notice of interim measures is provided.  Where a formal complainant has been filed, typically, interim measures will remain in place pending the resolution of the formal complaint. Violations of interim measures that are orders by a VCSU official constitute prohibited conduct.  2.    Examples of Interim Measures Potential interim measures include, but are not limited to: •    Assistance obtaining access to counseling, advocacy, or medical services; •    Assistance obtaining access to academic support and requesting academic accommodations; •    Changes in class schedules; •    Assistance requesting changes to on campus work schedules or job assignments; •    Changes to on campus housing; •    Providing an escort to complainant to promote safety on campus; •    “No-contact” orders (curtailing or prohibiting contact or communications between or among individuals). 3.    Issuance of Interim Measures   VCSU is responsible for issuing interim measures.  Interim measures will be designed in a fair manner and narrowly tailored to minimize to the extent possible any restrictions on those affected. In issuing interim measures, VCSU will make reasonable efforts to communicate with any impacted party to address safety and emotional and physical well-being concerns. Where no formal complaint has been filed and an interim measure impacts the respondent, the respondent will be provided with written notice of the report, which includes, as known, the date, time, and location of the alleged prohibited conduct and the underlying factual allegations, including the identity of the complainant.  Therefore, certain interim measures may not be available if the complainant wishes to maintain anonymity. Interim measures are not, in and of themselves, permanent resolutions. Rather, they are actions taken by VCSU based on information known at the time that the interim measures are issued. Accordingly, VCSU has the discretion to issue, modify, or remove any interim measure at any time additional information is gathered or circumstances change.   4.    Requested Review of VCSU’s Decisions Regarding Interim Measures   Both parties may at any time request that VCSU issue, modify, or remove interim measures based upon a change in circumstance or new information that would affect the necessity of any interim measures.     H.    Pending Criminal Investigations   In cases where there is a criminal investigation, the VCSU process will run concurrently with such investigation.  VCSU may grant temporary delays reasonably requested by law enforcement for evidence gathering.   VI.    Informal Resolution  Complainants may choose to pursue informal resolution of their complaint.  VCSU shall assign a School Official with the authority to remedy the alleged violation (e.g. Vice President for Student Affairs, etc.) to oversee the informal resolution process.    Both parties must agree to informal resolution.  Informal resolution is entirely voluntary and either party may end informal resolution at any time.    Informal resolution is a flexible process.  The School Official will consult with both parties and make suggestions for resolution.  Both parties must agree on the suggested course of resolution.  Unlike the formal hearing process that requires the parties to be separated during the hearing, informal resolution does not require the parties to be separated.  However, either party may choose to be separated during the process.   Informal resolution provides the parties with a forum to discuss the complaint and seek resolution.  In cases where the respondent acknowledges involvement in the sexual misconduct, the School Official shall impose an appropriate sanction for the misconduct.  If the sanction is agreeable to the parties, the informal resolution is complete, and the sanction is imposed.    In cases where the respondent does not acknowledge responsibility, the formal hearing process will apply.  VIII.    Formal Hearing Process   The formal hearing process begins when a formal complaint is filed with the Standing Committee on Faculty Rights (SCFR) chair or senior member of the SCFR and the University president.  SCFR shall appoint and delegate authority to a hearing officer to conduct pre-hearing meetings, supervise exchanged or collection of information, advise SCFR or preside over the hearing.   A.    Notice to Parties upon the Issuance of a Formal Complaint   After a formal complaint is filed, the hearing officer on behalf of SCFR will notify the complainant, respondent, SCFR, and the University president in writing, of the commencement of an investigation and provide both parties with a copy of the formal complaint.  Such notice will:  •    Identify the complainant and the respondent; •    Specify the alleged prohibited conduct and its date, time, and location, to the extent known; •    Specify the factual allegations pertaining to the prohibited conduct; •    Specify any sanctions that may be imposed; •    Identify the hearing officer; •    Inform the parties about the parties’ respective rights and obligations under V520.02 Prohibited Discrimination, Protected Status Harassment, and Other Misconduct and these procedures; •    Inform the parties of their right to seek the assistance of an advisor and a support person for emotional support; •    Inform the parties of the range of available resources, including mental health services and academic support resources; •    Explain the prohibition against retaliation; and  •    Instruct the parties to preserve any potentially relevant evidence, whatever its form. The notice requirement may be waived if the respondent consents to a short notice period or for the initiation of interim measures or emergency actions.    B.    Advisors and Support Persons Both the complainant and respondent have the right to be represented, at their own expense, by an advisor of their choice. During the proceedings, the faculty member is entitled to have an administrative or academic advisor and counsel of their own choice and at their own expense.   Both the complainant and respondent have the right to a support person of their choice to provide emotional support to the party.   Advisors and support persons may be any person, including an attorney, who is not a party or witness or otherwise involved in the case.  Advisors are advocates who advise a party during the conduct proceedings.   Advisors and support persons may attend their own advisees’ meetings, such as investigative interviews, and proceedings.     Advisors may fully participate in the hearing.  Fully participating includes the opportunity to make opening and closing statements, to examine and cross-examine witnesses, and to provide support, guidance, and advice.  Unlike advisors, support persons may not fully participate in the hearing.  By accepting the role of advisor or support person, all advisors and support persons agree to comply with all applicable rules, processes, and procedures, including rules regarding process privacy.   VCSU will not interfere with the parties’ rights to have an advisor and support person of their choice and fully expects advisors and support persons to adhere voluntarily to policy and procedure. In extreme cases, where the hearing officer determines that an advisor’s or support person’s conduct undermines the integrity of policy or these procedures, the advisor or support person will be prohibited from continuing to serve as advisor or support person in that case. The affected party will be permitted to obtain a substitute advisor or support person.     C.    The Parties’ Participation in the Investigation and Hearing   Both the complainant and the respondent may decline to participate in the investigation and/or hearing. However, VCSU may continue without a party’s participation, reaching findings and issuing sanctions. Additionally, a party’s decision not to participate in the investigation will limit the party’s ability to participate in the hearing.      D.    Consolidation of Reports, Formal Complaints, and Hearings    The hearing officer has discretion to consolidate reports and complaints that are factually related into one investigation.  Likewise, the hearing officer may conduct one hearing to address the factually related issues.      E.    Investigations of a Formal Complaint   1.    Overview of Investigations of a Formal Complaint   The investigation is designed to be timely, thorough, and impartial and to provide for a fair and reliable gathering of the facts.  All individuals involved in the investigation, including the complainant, the respondent, and any third-party witnesses will be treated with sensitivity and respect. The investigation will generally include individual interviews of the complainant, the respondent and relevant witnesses.  Upon completion of the investigation, the hearing officer will prepare a final investigative record and an investigative report.  The investigative record is a compilation of statements by the parties and witnesses as well as other evidence gathered by the hearing officer. The complainant and the respondent will have an equal opportunity to participate in the investigation, including an equal opportunity to be heard, submit evidence, and suggest witnesses who may have relevant information. 2.    Time Frame of and Time Limitations During the Investigation  The investigation will be completed in a timely manner. Throughout the investigation, both parties will receive reasonable notice of any meetings at which their attendance is requested, and the parties will be updated at regular intervals on the status of the investigation. The hearing officer will establish reasonable time limits for the various stages of the investigation, including meetings and deadlines for any submissions or responses, and the parties must adhere to these time limits.  The parties may request extensions for good cause.  If a party declines or fails to participate in a meeting or interview, provide evidence, or suggest witnesses, the party will have waived their right to do so upon the issuance of the final investigative record and report.     3.    Investigative Interview Process  The hearing officer will gather information from the complainant, the respondent, and other individuals who have relevant information.  As part of the investigation, the parties will have the opportunity to request in writing witnesses they would like the hearing officer to interview.   The hearing officer has the discretion to determine the relevance of any proffered witnesses, and, accordingly, the hearing officer will determine which witnesses to interview.   All persons being interviewed, including the parties, are prohibited from recording interviews.     4.    Evidentiary Materials   The hearing officer will gather relevant available evidentiary materials, including physical evidence, documents, communications between the parties, and electronic records and media as appropriate.   The parties will have the opportunity to request in writing the evidentiary materials they would like the hearing officer to seek to obtain.   The hearing officer has the discretion to determine the relevance of any requested evidentiary materials, and, accordingly the hearing officer will determine what evidentiary materials to seek to obtain.   Discovery is informal.  Formal discovery processes such as depositions and interrogatories are not permitted unless both parties agree. 5.    The Investigation  The hearing officer will be guided, but not limited to, the following procedure:  •    Identify the respondent.  •    Identify the facts of the incident by separately interviewing the complainant and respondent.  •    How did the complainant respond to the alleged prohibited conduct?   •    What efforts, if any, were made to resolve the issue informally. (ex. Were requests made for the behavior to stop?  Were requests made to separate the individuals?)  •    Are there any witnesses or evidence the complainant wants to include in the investigation?  Witness and evidence requests must be in writing.  •    Did the complainant inform others or the supervisor of the situation?  If so, what was the response?  •    What was the frequency and type of alleged prohibited conduct?  If known, what were the dates and locations?  •    What was the professional or personal relationship, degree of control, and amount of interaction between the two parties?  •    Does the complainant know or suspects that the respondent has engaged in prohibited conduct with other individuals?  •    During the first interview with the respondent, the investigator will inform the respondent of all the charges being made, along with supporting evidence.   •    What is the respondent’s explanation of the alleged behavior?  •    Are there any witnesses or evidence the respondent wants to include in the investigation? Witness and evidence requests must be in writing.  •    Remind the respondent of VCSU’s policy against retaliation.  •    Thoroughly examine and evaluate the responses made by the respondent.  •    Provide the complainant additional information from the investigation that would be significant to the outcome of the investigation.  •    Interview, as appropriate, witnesses identified by complainant or respondent or those who observed, or were told about, the alleged prohibited conduct.  •    Remind all parties and witnesses of the need for privacy.  •    Review, as appropriate, personnel files maintained by departments; previously concluded mediation agreements; previous records of findings for the allegation of prohibited conduct; and public records.  Some instances might require giving the individual who is the subject of the file or record notice and the opportunity to object.  The hearing officer will rule upon any objection.  As each complaint is unique, the hearing officer has discretion to determine what additional information is necessary to make a thorough investigation.    6.    Dismissal of Case by Hearing Officer  The hearing officer may dismiss a complaint and close the case where the complaint:   Is not reported or filed in a timely manner.   Is not supported by sufficient facts, lacks merit based upon the available evidence, or does not fall within the jurisdiction of the hearing officer. Similarly, the hearing officer may dismiss a complaint and close the case under any of the following circumstances:   The complainant fails or refuses to appear or to be available for interviews or conferences as necessary.   The complainant cannot be located after reasonable efforts have been made and has not responded for at least ten (10) calendar days to a notice sent by the hearing officer to his or her last known residence, office, or email address.   The complainant fails to provide requested, necessary information.   The complainant fails or refuses to cooperate with the investigation to the extent that the investigator is unable to reasonably resolve the charge.   The hearing officer determines that a complaint should be dismissed, the complainant will be informed of that decision, and given an opportunity to submit a written response within ten (10) working days.  When a complaint is dismissed, where appropriate, VCSU will attempt to restore the reputation of the respondent. To the extent permissible by law and VCSU policy, VCSU may take such steps as deleting records and, unless the respondent prefers otherwise, notifying persons who participated in the proceedings of the dismissal and/or making a public announcement of the outcome.  F.    Formal Hearings 1.    Overview of Hearing Process  SCFR conducts the hearing and provides findings of fact, conclusions and recommendations to the President.  The President makes and issues the final decision.    The hearing is intended to provide the parties with a fair opportunity to present relevant information to the hearing officer who will make informed decisions regarding responsibility sanctions, and/or remedies. The parties are entitled to provide opening statements, testimony, cross-examination, and closing statements. Throughout the hearing, parties with their advisor(s) and support person, if applicable, will not have direct contact with each other. The hearing officer conducts all questioning.   2.    Presumption of Non-Responsibility  The respondent will be presumed “not responsible” unless and until the President determines the respondent is responsible. 3.    Notice of Hearing   At the completion of an investigation, a determination will be made if a hearing is required.  If a hearing is required, a written Notice of Hearing will be sent to the parties at least twenty (20) calendar days prior to the hearing.  The notice will include the charges at issue, a brief summary of the alleged prohibited conduct; the date, time, and place of the hearing; the name of the hearing officer. Written Notice of the Hearing will be provided to both parties at least three (3) days prior to the hearing.  4.    Newly Discovered Evidence   If after the completion of the investigation, a party seeks to present a witness or introduce evidence not previously introduced, the hearing officer may grant such request upon a showing that the witness or evidence is relevant, material, newly discovered, and could not have been discovered during the investigation with due diligence.   Where a hearing officer permits a party to introduce a newly discovered witness or evidence, to prevent surprise to the other party, the hearing officer will reschedule or adjourn the hearing to investigate the newly discovered witness or evidence. The hearing officer will also allow the parties time to respond to the new information.   5.    Standard of Proof  SCFR will determine whether the respondent is responsible by using a clear and convincing evidence standard.  This means that to find the respondent responsible for any prohibited conduct, SCFR must decide, based upon the record as a whole, that it is highly and substantially more likely to be true than untrue that the respondent committed the alleged prohibited conduct.  If SCFR does not find the respondent responsible for any prohibited conduct under V520.02 or any supplemental jurisdiction, it will dismiss the case. If SCFR finds that the respondent is responsible under V520.02 or supplemental jurisdiction, it will consider appropriate sanctions and remedies.    6.    Stipulation Based on Written Statements The parties may agree to stipulate to a decision based on the written statements; thereby foregoing the formal hearing.  Based on the stipulation, SCFR will makes its decision on that basis.  G.    Hearing Process and Format   As termination is a potential sanction, the hearing will be closed to the public.  (NDUS 605.4(6).  The only persons present will be the parties, their advisor(s) and support person, witnesses (when testifying), the hearing officer, SCFR, and any staff necessary for the hearing.  Witnesses may be present only for their own testimony.   SCFR may establish reasonable time limits, rules, and format, providing the parties with equal opportunities to participate.   The trained, appointed hearing officer will coordinate the hearing.   Formal rules of evidence will not apply.   As required by policy, the hearing will be recorded.  Personal recordings are prohibited.   Typically, the format of the hearing will be as follows:   •    Introduction of SCFR  •    The hearing officer will explain the hearing process, address any necessary procedural issues, and answer questions.   •    Testimony by the complainant. •    Cross examination by the respondent. •    Testimony by the respondent. •    Cross examination by the complainant. •    Testimony by any witnesses. •    Closing statements by the complainant followed by the respondent •    SCFR will take the matter under advisement to make its determination.    1.    Evidence  SCFR may admit any evidence which is of probative value in determining the issues or if the interests of justice will best be served by admitting evidence.  Every reasonable effort shall be made to obtain the most reliable evidence available.  SCFR shall grant adjournments to enable either party to investigate evidence to which a valid claim of surprise is made.  2.    Testimony Testimony is conducted through a question-and-answer format.   Both parties will have the right to confront and cross-examine all witnesses. Witnesses may testify by telephone, video, or other electronic means upon agreement of the parties or, absent an agreement, request of a party and determination by SCFR or the hearing officer that such does not substantially prejudice the rights of any party.  Affidavits may be received into evidence upon the stipulation of the parties.    The hearing officer will ask persons being questioned to affirm that they will testify truthfully.   Both the complainant and the respondent may testify or decline to testify and may decide whether to testify when their turn to testify arises.   3.    Closing Statements The parties may make closing statements.   This is the opportunity for the parties to suggest inferences and conclusions.   The parties may not add or address information not contained in the hearing record, as SCFR will not consider new information. Nor may the parties address issues that pertain to sanctions and remedies. SCFR does not consider these issues when determining responsibility.   SCFR will establish a time limit for brief oral closing statements, typically around five (5) minutes.     4.    Determination on Sanctions and Remedies If SCFR finds the respondent responsible, it will make recommendations for appropriate sanctions and remedies.   In determining sanctions and remedies, SCFR may consider:   a.    The severity of the prohibited conduct; b.    The circumstances of the prohibited conduct;   c.    The impact of the prohibited conduct and sanctions and remedies on the complainant;   d.    The impact of the prohibited conduct and sanctions and remedies on the community;   e.    The impact of the prohibited conduct and sanctions and remedies on the respondent;   f.    Prior misconduct by the respondent; and   g.    Any other mitigating, aggravating, or compelling factors.     SCFR may recommend one or more of the following sanctions and remedies:   a.    Measures similar to the interim measures;   b.    Appropriate educational steps (such as counseling, evaluation, restitution, community service, compensation for theft and damage to person or property, alcohol or drug education, reflection papers, or directed study);   c.    Improvement plan, performance action plan;  d.    Negative comments in a performance review;  e.    Reprimand delivered either verbally or in writing;  f.    Document placed in personnel file (A document may only be placed in a personnel file after the faculty member has had the opportunity to read the material and has signed that he or she has read it.  IF the faculty member refuses to sign the copy, a VCSU representative will indicate that the faculty member was shown the material, was requested to sign the copy, and the faculty member refused to sign the copy to be filed.  The faculty member may file an answer to the material.); g.    Demotion; h.    Suspension;  i.    Salary reduction or loss of salary;  j.    Restriction or loss of privileges;  k.    Dismissal.  5.    Transcript and Record Available  Upon request, a verbatim transcript of the hearing(s) and copy of the record is available at no cost to both parties. 6.    Findings of Fact, Conclusions, and the Decision The findings of fact, conclusions, and the decision shall be based solely on the evidence received by SCFR. SCFR’s findings of fact, conclusions and recommendations, with supporting reasons, shall be reported simultaneously in writing, to the VCSU President, the complainant, and the faculty member or their representatives. The President shall provide written notice of the decision, including findings of fact and reasons or conclusions based on the hearing record, to SCFR, the complainant, and the faulty member within twenty (20) calendar days of receiving the report. The decision will include: the specific prohibited conduct for which the respondent was found responsible and not responsible; the findings of fact; and the rationale for SCFR’s determinations regarding both responsibility and sanctions. The decision will also inform the complainant, faculty member, and SCFR of the option of submitting within ten (10) calendar days of the decision a written response to the decision, to which the President may reply.  The decision of the President is final.  Both the complainant and respondent will be informed simultaneously of any sanctions and remedies, the date by which the requirements must be satisfied (if applicable), and the consequences of failure to satisfy the requirements.     VIII.    References/Related Resources  A. Federal  U.S. Department of Labor: Title IX, Education Amendments 1972  20 U.S. Code §1092 (f): Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act  34 U.S. Code §12291: Definitions and grant provisions  485(f) of the Higher Educational Act of 2008  Titles VI and VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 Violence Against Women Act  Violence Against Women Reauthorization Act (VAWA)  Civil Rights Act of 1991  Family Education Rights and Privacy Act (FERPA)  Age Discrimination in Employment Act of 1967  Rehabilitation Act of 1973 §504  Americans with Disabilities Act of 1990  34 CFR Parts 100, 106, 104 Department of Education regulations  B. State North Dakota Human Rights Act 1983  NDCC §12.1-17-07.1 Stalking  NDCC §12.1-17-08 Consent as a Defense  NDCC § 12.1-20-02 Definitions related to Sex Offenses  NDCC §14-03-03 Void Marriages  NDCC § 14-07.1-01 Definitions related to Domestic Violence  NDCC § 15-10-56 Disciplinary proceedings—Right to counsel for students and organizations—Appeals  NDCC § 54-06-21 Public employee personnel records—Administration—Access.   NDUS Human Resource Policy Manual 25: Job Discipline/Dismissal  NDUS Human Resource Policy Manual 27: Appeals Procedures  C. Related University Policy  NDUS 308.1 Officer and Employee Code of Conduct  NDUS 514 Due Process Requirements for Student Conduct that May Result in Suspension or Expulsion  NDUS 603.1 Harassment  NDUS 603.2 Equal Employment Opportunity  NDUS 603.3 Nepotism  NDUS 605.1 Academic Freedom and Tenure; Academic Appointments  NDUS 605.2 Standing Committee on Faculty Rights  NDUS 605.3 Non-Renewal, Termination or Dismissal of Faculty  NDUS 605.4 Hearing and Appeals  NDUS 605.5 Mediation  NDUS 608.2 NDUS Employees—Non-Renewals and Dismissals  NDUS 611.4 Employee Responsibility and Activities: Conflict of Interest  NDUS 612 Faculty Grievances  NDUS Procedures 607.0.7 Personnel Files  V308.01 VCSU Employee Code of Conduct  V520.01 Code of Student Conduct  V530.04 University Hearings and Appeals Board  V603.01.02 Hostile Work Environment  V603.01.03 Workplace Violence  V603.02 VCSU Equal Opportunity Employment Plan  V603.03 Nepotism  V605.02 VCSU Standing Committee on Faculty Rights  V605.03 Non-Renewal, Termination or Dismissal and Sanction of Faculty Members  V605.05 Mediation  V605.09 Faculty Responsibilities  V612 Faculty Grievance Policies and Procedures  Sponsored by: Director of Human Resource Approved by: Title IX Coordinator Reviewed: Winter 1996 Revised: Winter 2005 Revised November 2009 Reviewed: Spring 2017 Revised:  May 2019 Revised with Title Change:  August 2020

Valley City State University is fully committed to equal opportunity in employment decisions and educational programs and activities, in compliance with all applicable federal and state laws, for all individuals without regard to race, color, national origin, religion, sex, disability, age or Vietnam-era veteran's status.  More specifically, the University abides by the requirements of Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and Section 504 of the Rehabilitation Act of 1973, as well as the implementing regulations of the Department of Education (34 CFR Parts 100, 106, and 104 respectively), the Americans with Disabilities Act of 1990 and North Dakota Human Rights Act of 1983.  Inquiries concerning compliance may be directed to the VCSU Director for Human Resources/Deputy Title IX Coordinator, (101 College St SW, McFarland 211, Valley City ND 58072; 701-845-7424), Vice President for Student Affairs/Title IX Coordinator (101 College St SW, McFarland 209, Valley City ND 58072; 701-845-7300), or to the Office of Civil Rights, U.S. Department of Education, 10220 N. Executive Hills Blvd., 8th Floor, 07-6010, Kansas City, MO 64153-1367.  The following policy will be followed in making any appointment to a payroll position for which the individual will receive fringe benefits. When a position vacancy occurs and there is a pool of regular employees appropriately qualified for transfer or promotion (including former employees covered by the Reduction in Force policy) a supervisor, in consultation with the appropriate Vice President and Director of Human Resources, may choose to advertise a vacant position internally for a minimum of five working days, externally, or internally and externally (simultaneously). With the exception of length of posting time, procedures will be the same as for external searches. Employees who have not completed a six-month probationary review may apply as external applicants, and those who have completed a six-month probationary review may apply as internal applicants. Although the department heads are encouraged to only announce any position throughout the University that offers an important promotional opportunity to employees in other departments, the formal position announcement procedures shall be optional in the following cases: Time slip employment, which is not identified as a payroll budget appointment. The transfer or promotion of an employee within a department or office provided that the employee is fully qualified for the new position and was originally hired through a competitive search. The transfer of a faculty member from special appointment status to a probationary appointment provided that he or she had secured the special appointment on a competitive basis. A reassignment of duties on a part-time basis, including any appropriate change in title, which does not result in more than a 10% salary increase, a change of more than 50% of the original duties, or the creation of a position vacancy. The appointment of an employee to fill a vacant administrative position on an acting basis, normally for a period not to exceed one year, while a search is being conducted for a permanent appointee. When there is a concurrence by the hiring department, reassignment due to: An injury resulting in worker’s compensation award and subsequent retraining, or Reduction-in-force. Recruitment for all full-time, benefited administrative/managerial, professional, technical and paraprofessional, office support, crafts/trades, and services classified staff positions (1000, and 3000-7000 band job categories) shall include: Posting internally for the length of a five working days, and internally/externally for the length of a minimum of ten working days. The use of a search committee of at least three people to be appointed by the Search Committee Chair at the same time as the request to recruit to fill a position opening. Search Committee Chairs are urged to consider the importance of diversity when making appointments to the search committee. The search committee shall be involved in recruiting, screening and interviewing applicants, The search committee is encouraged to solicit and include applicants from under represented and protected groups. Selection from the group of finalists to fill the position is the responsibility of the Search Committee and Search Committee Chair. Internal candidates are not guaranteed a interview. The Director of Human Resources, depending on the type of position, shall be considered an ex-officio member of each search committee and will be available to assist the committee in fulfilling its responsibilities. Recruitment for all full-time, benefited academic classified staff positions (2000 band job categories) shall include: Posting internally for the length of a minimum of five working days, and internally/externally for the length of a minimum of twenty working days. The use of a search committee of at least three people to be appointed by the Search Committee Chair at the same time as the request to recruit to fill a position opening. Search Committee Chairs are urged to consider the importance of diversity when making appointments to the search committee. The search committee shall be involved in recruiting, screening and interviewing applicants, The search committee is encouraged to solicit and include applicants from under represented and protected groups. Selection from the group of finalists to fill the position is the responsibility of the Search Committee and Search Committee Chair. The Director of Human Resources and Vice President of Academic Affairs, depending on the type of position, shall be considered an ex-officio member of each search committee and will be available to assist the committee in fulfilling its responsibilities. Appointment and search proceedings will follow V601.04 & V601.05, Selection and Appointment Procedures for Full-Time Tenure Track Positions and Selection and Appointment Procedures for Temporary and Part-Time Faculty (respectively) With prior approval, the temporary appointment of a person to a grant-funded position when the individual has been instrumental in the development of the project, or is identified by name in the proposal as having unique expertise necessary to the project. This temporary appointment may not be continued beyond the period of the grant project, and the individual may not be transferred to any other University appointment without an appropriate search. Exceptions to this policy may be authorized by the President in consultation with the Director of Human Resources. The request for an exception will be made by the appropriate vice president after consultation with the University’s Director of Human Resources and the director of the department involved. Grievances may be made by any employee of the University. Sponsored by: Director of Human Resources  Reviewed: Winter, 1996 Revised: July 2001 Revised: May 2012 Revised: May 2013 Revised: November 2018

SBHE Policy 603.3 states University system officers and employees shall comply with N.D.C.C. § 44-04-09, relating to nepotism. Accordingly, an officer or employee may not, except as permitted by law, serve in a supervisory capacity over, or enter into a personal services contract with, a member of the officer's or employee's immediate family. When two or more members of the same immediate family are employed in the same department or institution, the head of the department or institution shall reassign responsibility for performance evaluations, salary recommendations, disciplinary actions and other supervisory authority as necessary in order to comply with N.D.C.C. § 44-04-09. "Immediate family" means a parent (by birth or adoption), spouse, son or daughter (by birth or adoption), stepchild, brother or sister by whole or half blood or adoption, brother-in-law or sister-in-law, or son-in-law or daughter-in-law. The Chancellor may adopt procedures to ensure compliance with this policy. VCSU Procedures for Compliance with NDUS policy The new hire process will include a question asking new employees if they have any relatives who are employees of VCSU and if yes, who and where they work. The Director for Human Resources will review supervisor/employee relationships in situations of internal hires and transfers. The Human Resources Director will send an annual request asking employees to self-identify non-compliance with the nepotism policy. Sponsor: Vice President for Business Affairs Reviewed: July 2008 Revised: Spring 2014 Reviewed: October 2018 Revised: April 2023

VCSU provides Faculty Excellence Awards to full time and adjunct faculty who show exceptional dedication and commitment to students and the University by outstanding teaching, scholarly activities, or university service. Four award categories are available: one senior faculty (associate or full professor), one junior faculty (instructor or assistant professor), one adjunct faculty, and one special appointment faculty. The President of VCSU will announce the recipients in early May of the academic year.  A. Award Requirements 1.    Faculty and/or supervisors will nominate faculty for consideration (see procedure D).  2.    Self-nominations are not acceptable.  3.    Nominees must be full-time employees for faculty awards; nominees for the adjunct award must have taught at VCSU for three consecutive years.  4.    Nominees must be the appropriate rank for each award. 5.    Recipients of a Faculty Excellence Award are ineligible to receive the same Faculty Excellence Award for three academic years following receipt. B. Award Criteria Award criteria are open-ended and may include, but are not limited to, one or more of the following contributions:  1.    Fulfilled goals of the University Strategic Plan (Department, University, state, or other goals) 2.    Received recognition for achievement outside of the university 3.    Utilized innovative approaches inside or out of the classroom 4.    Revitalized or restructured an existing program or initiative 5.    Created a new program or initiative 6.    Participated in significant cross-departmental collaboration 7.    Engaged in significant service or activity (to the University, the public, or the State) that positively impacts the University 8.    Provided significant contributions to the individual’s discipline (books, papers, presentations, etc.) 9.    Exceeded expectations the job description for the given rank, i.e., “goes above and beyond” 10.    Exhibited evidence of other comparable contributions C. Award Selection 1.    Members from the Faculty Advocacy Committee will review the nominations. In the case that a member of the Faculty Advocacy Committee is nominated for an award, that member will recuse themselves from voting in the category they were nominated for. Each vacant position will be filled by a faculty member who has received an excellence award in the previous three academic years on a volunteer basis. The vacancy will be filled in reverse chronological order, when possible, at the direction of the Faculty Advocacy Committee Chair, to achieve five voting persons for each category. 2.    Any faculty member who is a nominee cannot be part of the evaluation process. 3.    The Faculty Advocacy Committee are not allowed to nominate people. 4.    Faculty Advocacy Committee members, which does not include the Chair, (and any substitute members) will take a blind vote without any prior discussion of the nominations. In the case of a tie vote between two individuals, the Faculty Advocacy Committee Chair will be asked to cast a tie-breaking vote. 5.    The Faculty Advocacy Committee will forward no more than one recommendation for each award to the President of the University. 6.    The President of the University shall review and select the recipient from each category. 7.    If there is no nominee in a specific category, no award for that category will be given that year. D. Procedure for Application 1.    The Faculty Advocacy Committee Chair will send out a campus email to call for nominations by the first Friday in December. 2.    Faculty and/or supervisors will submit nomination forms to the chair of the Faculty Advocacy Committee, through the Office of the Vice President of Academic Affairs, by the first Friday in February (form AA-19 Faculty Award of Excellence Nomination is located at https://onestop.vcsu.edu/support/solutions/articles/10000032791-aa-19-faculty-award-of-excellence-nomination). 3.    Information on the nomination form will include: A specific description of why the person deserves the award (based on criteria in Section B) A statement of impact to the University One letter of support from students, faculty, staff, administration, or community. 4.    Following receipt of the nomination forms, and no later than the first Friday in March, the Faculty Advocacy Committee will request from the nominees the following support documentation: a.    Curriculum Vita 5.    The Faculty Advocacy Committee with not consider any late nominations. 6.    The Faculty Advocacy Committee will not consider incomplete nomination forms. 7.    The Faculty Advocacy Committee will review nominations and support documentation by the first Friday in April and forward one name in each category to the President of the University for approval. 8.    The President of the University will notify the recipient in each category by the first Friday in May. Sponsor: Faculty Advocacy Committee Effective: December 2014 Revised: March 2016 Revised: November 2018 Revised: February 2021

Types of Appointments:  At VCSU, faculty are hired in one of three types of positions:    1.    Tenure track/tenure. Faculty in the tenure track demonstrate expertise in teaching and scholarly or creative work, along with research and study that contribute significantly to the depth of knowledge that informs classroom teaching, thereby benefiting both students and the university.  They may also have professional expertise that provides meaningful context and application for students.  Faculty in this track typically have a contract that includes 80% teaching (24 credit hours annually), 10% scholarship, and 10% service.    2.    Practitioner Track.  Faculty in this position track are hired in fixed year contracts of 1-3 years.  They are expert teachers with strong practical credentials who provide meaningful contextual experience for students.  Faculty in this track have contracts more heavily weighted toward teaching; service may be included in the contract, but scholarly work is not.  Their contracts may range from 100% teaching (30 credits annually) to as low as 80% teaching and 20% service.      3.    Adjunct.  Part-time faculty who are hired on a term by term basis.  They should not be hired for more than 8 credits per semester.    The following chart illustrates the differences between the appointment types:     Tenure/Tenure track “Special Appointment” (SBHE 605.1)   Practitioner Track   Adjunct Contract comes from President President VPAA FTE (based on 9 mo) 1 FTE .75 – 1 FTE 7 credits in a single semester, could be a member for that semester) Evaluation Use AA-4 or AA-5 AA-29  Use AA-29 Determining Faculty Rank:  Faculty rank is determined by credentials at entry point and through annual peer review and recommendation.     1.    Tenure track faculty who meet the minimum requirements of the job description begin their work at VCSU as an Assistant Professor.  In cases where the best candidate falls slightly short of the stated minimum (ABD, for example, when searching for a PhD candidate), the committee may recommend the candidate, who must meet the minimum requirements before start of the term of hire.  Failure to do so will reduce the rank to Instructor until the term following completion of the stated minimum.    2.    Practitioner faculty who meet the minimum requirements for hire (see Faculty Qualifications policy, V605.01.04) begin their work at VCSU as an Assistant Professor.      3.    Adjunct faculty must meet the minimum requirements for hire (see Faculty Qualifications policy, V605.01.04).     4.    Evaluation, Tenure, and Promotion procedures are outlined in V605.01.01, V605.01.02, and V605.01.03.     The chart below illustrates the qualifications and for each rank and faculty position.  Rank Qualifications Adjunct Not a full search. Meets minimum HLC requirements. Temporary employment.  One rank only.  Years at this rank do not count toward promotion. Instructor Primarily bachelor’s degree and exceptional qualifying experience for a specific teaching area, such as Spanish or private flute lessons  ****  May be used for a Practitioner or tenure track candidate who does not meet Department Specific Requirements as advertised  Instructor or Assistant Professor – Practitioner Track Not a full search. Meets minimum HLC requirements. 1-3 year appointment.  Fixed term contract may include teaching, and service as determined by department. Assistant Professor—Tenure Track Meets minimum HLC requirements AND Departmental Specific requirements as advertised Associate Professor—Tenure Track Six years of teaching at VCSU (does not include years granted toward tenure) Professor—Tenure Track Ten years of teaching at VCSU (does not include years granted toward tenure) Required Form: AA-6b First Year Faculty Evaluation Professional Development Plan AA-9 Faculty Qualifications Audit  AA-27a Self-Evaluation, Tenure and Non-Tenure Guidelines   Sponsor: Faculty Association Reference: Approved by Academic Policy and Affairs Council and Faculty Senate in 1984 Reviewed: Winter 1996 Revised: Winter 2000 Revised: January 2011 (Revised from "Tenure Policy" to "Terminal Degrees, Tenure and Promotion." Policy and procedures for tenure, evaluation, and promotion are in policies V605.1.1, V605.1.2,and V605.1.3) Revised and Name Change:  March 2020 Revised: April 2022

The procedures set forth in this section implement North Dakota State Board of Higher Education Policy 605.1, Section 3.a and Section 3.b, and Section 3.c. In accordance with State Board policy, 605.1 and Section 4.a, Probationary Appointments are renewable annually and yield credit toward tenure. The probationary term is limited to six years of continuous academic service, excluding extensions to the term or exceptions to the continuous service requirement granted in exceptional circumstances. See section B, below, for Extension of the Probationary Period.  A recommendation to the President for early tenure (in year 5) may be made in exceptional circumstances. “Exceptional” in this context refers to two specific benchmarks, including ratings in the performance rubric (AA-20) that fall in the “excellent” column; and, in addition or as part of those ratings, the development of a national reputation, the earning of institutional or national awards and honors, or significant, peer-juried publication of scholarly or creative work. The department tenure committee and department chair/dean must both provide rationale consistent with this definition of “exceptional.” A. Tenure Procedures At the end of September each year, the Vice President for Academic Affairs (VPAA) will announce to the faculty the list of faculty eligible for tenure consideration and those seeking promotion. A faculty member undergoing tenure evaluation will complete the process described in this policy, V605.01.01, instead of the pre-tenure evaluation process described in V605.01.02 Standards for tenure are detailed in Forms AA-20 and 21 (EPT Rubric and Portfolio Help Document) 1.  The department chair/dean will appoint a departmental tenure committee and name the committee chair. Membership will include at least three full-time, tenured Faculty. department chair/dean may request the participation of a qualified faculty member outside the Department. Exceptions to this policy must be documented and approved by the VPAA. The department chair/dean may not serve on a tenure committee in their respective departments. If the tenure candidate is a department chair/dean, the VPAA or designee will assume the role defined for the Department Chair/Dean. 2.  By the first week in November, the departmental tenure committee will meet with the candidate(s) to discuss the tenure review process, timeline, and required materials. 3.  The department chair/dean will document all exceptions and meetings on AA-5a and include this document as the cover page of the completed evaluation materials forwarded to University Tenure and Promotion Committee (UTP) (see #11, below). 4.  The individual faculty member will compile the materials needed to complete the self-assessment portfolio, using forms AA-20 and 21 to guide selection of materials, organization, and reflection. 5.  The faculty member will submit the completed portfolio to the departmental tenure committee, following the timeline specified by the committee (see #3, above)  6.  The departmental tenure committee will review the portfolio carefully to make certain it meets the requirements established for tenure in AA-20. Portfolios that are not complete and do not make a convincing case for tenure should not be forwarded to the department chair/dean.  The candidate should consult with his/her committee and can resubmit before the deadline   7.  The departmental tenure committee will review the portfolio and make a recommendation (Form AA-5b) and forward the recommendation to the department chair/dean. 8.  The department chair/dean will complete his/her recommendation on Form AA-5c.   9.  The departmental tenure committee and department chair/dean will meet with the candidate to review their recommendations. 10.  The candidate may write a response to the recommendation that is attached to the hardcopy tenure documents (Forms 5a-c) which are submitted to the VPAA.   11.  The department chair/dean will submit the completed portfolio (or URL) and documentation to the VPAA office no later than February 10. At this point, the portfolio and documentation should be considered complete; additional materials may not be added or considered except in cases of appeal (see #16 below).  Therefore, all parties must take care to express ideas, concerns, and recommendations clearly and completely.   12.  The University Tenure and Promotion (UTP) committee will review each portfolio and make a recommendation (Form AA-6b). This recommendation and the portfolio should be forwarded to the President by no later than February 28. The Committee should make its decision based on the materials presented in the portfolio.  It is the responsibility of the reviewers to read carefully and thoroughly and exclude personal bias in making decisions. Committee members are not eligible to vote on faculty Promotion and Tenure candidates from their department. Committee members are not eligible to vote on faculty Promotion and Tenure candidates if they were part of the candidate’s departmental tenure and promotion committee during the current academic year. Committee members who are not eligible to vote (12a) may participate in the UTP discussion, always remembering that they are at-large members of the committee and must represent the faculty as a whole, not their department’s candidate.  13.  The President of the University will review each portfolio and make a final determination.  If the President’s decision differs from the recommendation of the University Promotion and Tenure Committee, the President will meet with the chair of the committee prior to announcing his/her decision.   14.  The President will inform each candidate of the decision via letter or email, with copies to the VPAA and department chair/dean.  The President will forward his/her recommendation to the State Board for review and decision. 15.  The completed tenure documents (AA-5a, AA-5b, AA-5c, and AA-6b forms) will be retained in the VPAA office; the candidate will receive a copy of the completed AA5d and AA-6b.   16.  The candidate has the right to appeal the President’s decision.  The first step in this process should be a letter of appeal to the President.  Should the matter not be resolved satisfactorily within 20 working days, the candidate may appeal to the Standing Committee on Faculty Rights, using the process described in NDUS 605.4.   B. Extension of the Probationary Period A semester will count as part of the probationary period for tenure only if a faculty member is teaching full-time at Valley City State University. Summer school does not count as a semester, since it is difficult to teach a full load and to fulfill the University service commitment during the summer.  The required term for qualification for tenure may be extended beyond six years and the continuous service requirement waived to a maximum of eight years when an individual is officially granted leave under one of the following policies: V701.01 (Leave without Pay) or V607.04 (Faculty Sick Leave -- Long term leave or Family Leave) Application for tenure in these exceptional cases must be made no later than the end of the 15th semester of teaching at Valley City State University (for review and Board action during the 16th semester). The date of application will follow the tenure policy timeline if it is to be in the Spring. Tenure documents must be submitted to the UTP Committee by September 30th if application is made in the Fall. Exceptional circumstances not covered by this policy may be permitted on an individual basis through submission of a request to the Vice President for Academic Affairs.   Forms required: AA-5a Faculty Evaluation, Tenure, Promotion Cover Page AA-5b, Faculty Departmental Committee Recommendation AA-5c Departmental Chair Recommendation AA-6b Tenure/Promotion Review Help documents: AA-20 Evaluation, Tenure and Promotion Rubric  AA-21 Portfolio Help Document Dates: Sept. 30—VPAA sends email to all faculty, informing them who will be up for tenure and promotion during the academic year. Nov. 1—Departmental Committee meets to establish timeline, process, and required materials. Feb. 10— department chair/dean submits Forms 5a, 5b, and 5c to VPAA office. Feb. 28—UTP Committee makes recommendations to President Late March or late April:  SBHE reviews tenure recommendations and awards tenure. After the SBHE meeting:  President notifies faculty member and department chair/dean of SBHE tenure decision. Sponsored by: Faculty Association Reference: Approved by Academic Policy and Affairs Council and Faculty Senate in 1984. Approved: Faculty Senate, 1984 Reviewed: Winter, 1996 Revised: March, 2002 Revised: January 2011 (Revised from "Faculty Promotion" to "VCSU Tenure Procedures." Faculty Promotion is now V605.1.3) Revised: December 2012 Revised: March 2015 Revised: February 2018 Revised:  April 2019 Revised:  May 2020