Section 0240-10-06-.10 - APPEALS(1) Types of appeals. The Respondent may appeal an SCB decision by either electing:(a) An internal appeal to an Appeal Reader which shall be governed by the following rules; or(b) In the case of the following sanctions: (3) revocation of degree; or(4) revocation or suspension of the student organization's University registration, a respondent has the right to a contested case hearing under the Uniform Administrative Procedures Act ("UAPA Hearing"), Tennessee Code Annotated §§ 4-5-301 et seq. which is conducted in accordance with state law and the University's procedures for conducting contested case proceedings.(2) Appealable Decisions. The Respondent may appeal the decisions of the SCB that are contained in the Notice of Decision, but the grounds for appeal are limited to those described in Section .10(4).(3) Notice of Appeal. An appeal is valid only if all of the following requirements are met: (a) An appeal shall be submitted in writing by fully completing a form approved by OSA called a "Notice of Appeal;"(b) The Notice of Appeal shall be received by OSA within ten (10) business days of the date that OSA transmitted the Notice of Decision; and(c) The Notice of Appeal shall not include information that is not included in the record of the SCB Hearing, unless there is new information as described in Section .10(4)(b).(4) Grounds for Appeal. The Notice of Appeal shall explain the grounds for the appeal, which shall be limited to one (1) or more of the following grounds:(a) Material Procedural Error. A procedural error occurred prior to or during the SCB Hearing, and the procedural error reasonably could have had a material impact on the SCB in reaching its decision. Neither the failure of the Respondent or the Complainant to secure the attendance of an Advisor or witness nor the failure of an Advisor or witness to attend or otherwise participate in any phase of the student conduct process constitutes a material procedural error. The failure of the Respondent or the Complainant to attend the SCB Hearing does not constitute a material procedural error.(b) New Information. New information has been discovered, the information reasonably could have had a substantial impact on the SCB in reaching its decision, and the person submitting the Notice of Appeal did not know and reasonably could not have known about the information at the time of the SCB Hearing.(c) Conflict of Interest, Personal Prejudice or Bias of a SCB Member. A SCB member had a personal prejudice or bias that precluded them from fairly and impartially hearing the case. The fact that a SCB member voted to find a Respondent responsible or not responsible for violating a Behavioral Expectation or Responsibility does not, by itself, demonstrate that the SCB member had a personal prejudice or bias for or against the Respondent, the Complainant, or the University.(5) Effective Date of Sanction. The sanction(s) imposed by the SCB shall not be effective during the period in which a Notice of Appeal may be submitted, or, if a procedurally valid Notice of Appeal has been submitted (as determined by Section .10(3), until a Notice of Appeal Decision is issued by the Appeal Reader or Appellate Board, whichever is later.(6) Determination of Procedural Validity of Notice of Appeal. Within five (5) business days after the receipt of a Notice of Appeal, OSA will determine whether the Notice of Appeal is procedurally valid. A Notice of Appeal is procedurally valid only if it has been fully completed, timely submitted to OSA, does not contain information outside of the record of the SCB Hearing, and does not contain a ground for appeal not listed in Section .10(4). If a Notice of Appeal is procedurally invalid and the time for submitting a Notice of Appeal under this Section .10(3)(b) has expired, then OSA shall send the Conduct Educator, the Respondent, and the Complainant (if permitted or required by law) a notice that the decision of the SCB has become final and any sanction(s) imposed will become effective immediately. However, in a case in which the Notice of Appeal contains information outside of the record of the SCB Hearing or a ground for appeal not listed in Section .10(4), OSA may proceed with appointing an Appeal Reader after removing from the Notice of Appeal information that was not included in the record of the SCB Hearing and/or the impermissible ground for appeal.(7) Appointment of Appeal Reader. The Appeal Reader is the University officer that considers appeals of decisions of the SCB, after a procedurally valid Notice of Appeal has been submitted to OSA. OSA will appoint a pool of persons trained by OSA who are eligible to serve as an Appeal Reader. OSA may appoint University faculty members or University staff employees to be members of that pool. OSA shall not appoint persons on the basis of how OSA anticipates that they will decide. The Director of OSA shall not appoint a person to serve as an Appeal Reader if the person served as a Chairperson or a voting member of the SCB whose decision is being appealed. In addition, an employee who works in OSA or whose direct supervisor is the Conduct Educator who participated in the SCB Hearing shall be ineligible to serve as an Appeal Reader.(a) Recusal. If the Appeal Reader determines that they cannot decide the appeal fairly and impartially for any reason they shall recuse themselves from serving as the Appeal Reader, in which case OSA shall appoint a substitute Appeal Reader in accordance with this Section .10(7).(8) Transmittal of Notice of Appeal. After the appointment of the Appeal Reader, OSA shall transmit a copy of the Notice of Appeal to persons who have a need to know about the Notice of Appeal, including, without limitation, the Appeal Reader and all non-appealing parties (e.g., if the Respondent appeals, the Conduct Educator and the Complainant would be the non-appealing parties). A non-appealing party may submit a written response to the Notice of Appeal to the Appeal Reader within three (3) business days of OSA's transmittal of the Notice of Appeal. The written response shall be limited to: (1) responding to issues raised in the Notice of Appeal and shall not contain information that is not included in the record of the SCB Hearing; and (2) request the removal of an Appeal Reader on the grounds that the person cannot be fair and impartial in deciding the case or conflict of interest. If OSA determines that the person cannot be fair and impartial, then OSA may appoint a substitute Appeal Reader in accordance with this Section .10(7).(9) Review of the Record. The Appeal Reader's final decision shall be based on his/her review of the record of the hearing before the SCB, which shall be limited to: (1) the Notice of Allegations;(2) the Notice of Formal Hearing;(3) the Notice of Decision;(4) the recording and the transcript, if any, of the hearing, and all other information submitted to the SCB during the hearing; and(5) the Notice of Appeal and any written responses, in accordance with this Section .10.(10) Potential Decisions of the Appeal Reader. The Appeal Reader shall reach one (1) of the following decisions:(a) Affirm both the SCB's finding that the Respondent violated the Behavioral Expectations and Responsibilities and the sanctions imposed by the SCB;(b) Remand the case for a new hearing to be conducted by a new SCB.(11) Notice of Decision. The Appeal Reader shall communicate their decision through a written notice called a Notice of Appeal Decision. The Notice of Appeal Decision should be issued within ten (10) business days of the submission of the Notice of Appeal. The Notice of Appeal Decision shall be sent to OSA, who will notify the Conduct Educator, the Respondent, the Chairperson of the SCB, and, if permitted or required by law, the Complainant about the Notice of Appeal Decision and provide them with a copy of the Notice of Appeal Decision.Tenn. Comp. R. & Regs. 0240-10-06-.10
New rules filed July 20, 2021; effective 10/18/2021.Authority: T.C.A. §§ 4-5-102(3) and 49-8-203(a)(1)(D).