WSR 17-06-031 EMERGENCY RULES BIG BEND COMMUNITY COLLEGE [Filed February 23, 2017, 12:49 p.m., effective February 23, 2017, 12:49 p.m.] Effective Date of Rule: Immediately upon filing.
Purpose: On December 1, 2016, the court of appeals of the state of Washington Division III filed an opinion regarding full adjudicative proceedings required by the Washington Administrative Procedure Act (APA), chapter 34.05 RCW in the Arishi v. Washington State University case (No. 33306-0-III). Big Bend Community College (BBCC) currently provides a full adjudicative process in situations where a student is alleged to have violated the standards of conduct for students and suspension of more than ten instructional days or dismissal/expulsion might be a result and also for all allegations of student sexual misconduct; however, BBCC will provide additional clarification regarding the adjudicative process and incorporate language from the APA and model rules of procedure (chapter 10-08 WAC) in its student conduct code WAC to ensure compliance with the court of appeals decision. Further clarification regarding the equal rights of a complainant in sexually violent conduct complaints will also be added for compliance with Title IX guidance from the United States Department of Education's Office for Civil Rights.
Citation of Existing Rules Affected by this Order: Amending WAC 132R-04-067 Appeal from disciplinary action, 132R-04-130 Student disciplinary committee process, and 132R-04-150 Appeal from student disciplinary committee initial order.
Statutory Authority for Adoption: RCW 28B.50.140.
Other Authority: Chapter 34.05 RCW, APA.
Under RCW 34.05.350 the agency for good cause finds that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.
Reasons for this Finding: The reason for this finding is that on December 1, 2016, the court of appeals of the state of Washington Division III filed an opinion regarding full adjudicative proceedings required by the APA, chapter 34.05 RCW in the Arishi v. Washington State University case (No. 33306-0-III) in order to be in full compliance with this decision some amendments are necessary.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: January 17, 2017.
Dawna L. Haynes
Dean of Students
AMENDATORY SECTION (Amending WSR 16-15-011, filed 7/8/16, effective 8/8/16)
WAC 132R-04-067 Appeal from disciplinary action.
(1) The respondent may appeal the results of a disciplinary action by filing a written notice of appeal with the conduct review officer within twenty days of service of the discipline order. Failure to timely file a notice of appeal constitutes a waiver of the right to appeal and the student conduct officer's order shall be deemed final.
(2) The notice of appeal must include a brief statement explaining why the respondent is seeking review.
(3) The parties to an appeal shall be the respondent and the conduct review officer.
(4) A respondent, who timely appeals a disciplinary action or whose case is referred to the student disciplinary committee, has a right to a prompt, fair, and impartial hearing as provided for in these procedures.
(5) In the event of a conflict between this student conduct code and the Administrative Procedure Act, chapter 34.05 RCW, ((governs committee proceedings and controls in the event of any conflict with these rules)) this student conduct code will govern.
(6) The college hereby adopts the Model rules of procedure, chapter 10-08 WAC, by reference. To the extent there is a conflict between these rules and chapter 10-08 WAC, these rules shall control.
(7) Imposition of discipline for violation of the student conduct code shall be stayed pending appeal, unless respondent has been summarily suspended.
(8) The student disciplinary committee shall hear ((appeals from)) the following cases as fully adjudicated proceedings:
(a) Appeals from suspensions in excess of ten instructional days;
(b) Appeals from dismissals; ((and))
(c) Discipline cases referred to the committee by the student conduct officer; and
(d) Cases in which students request to have their discipline case heard by the committee.
(9) Student conduct appeals involving the following disciplinary actions shall be heard as brief adjudicative proceedings:
(a) Suspensions of ten instructional days or less;
(b) Disciplinary probation;
(c) Reprimands; and any conditions or terms imposed in conjunction with one of the foregoing disciplinary actions.
AMENDATORY SECTION (Amending WSR 16-15-011, filed 7/8/16, effective 8/8/16)
WAC 132R-04-130 Student disciplinary committee process.
(1) Student disciplinary committee process.
The student conduct administrative panel will conduct full adjudicative proceedings in accordance with the provisions of this Standards of Conduct for Students Code, the Administrative Procedure Act (chapter 34.05 RCW), and the model rules of procedure (chapter 10-08 WAC) including a hearing, determination of findings, conclusions, and sanctions. To the extent there is a conflict between the conduct code and the model rules, this student conduct code shall control.
(a) The committee chair shall serve all parties with written notice of the hearing not less than seven business days in advance of the hearing date, as further specified in RCW 34.05.434 and WAC 10-08-040 and 10-08-045. ((To the extent there is a conflict between these rules and chapter 10-08 WAC, these rules shall control.)) The chair may shorten this notice period if both parties agree, and also may continue the hearing to a later time for good cause.
(b) The committee chair is authorized to conduct prehearing conferences and/or to make prehearing decisions concerning the extent and forms of any discovery, issuance of protective orders, and similar procedural matters.
(c) Upon request filed at least five days before the hearing by either party or at the direction of the committee chair, the parties shall exchange, no later than the third day prior to the hearing, lists of potential witnesses and copies of potential exhibits that they reasonably expect to present in their respective cases. Failure to participate in good faith in such a requested exchange may be cause for exclusion from the hearing of any witness or exhibit not disclosed, unless the party can show good cause for such failure.
(d) The committee chair may provide to the committee members in advance of the hearing copies of (i) the conduct officer's notification of imposition of discipline (or referral to the committee) and (ii) the notice of appeal (or any response to referral) by the respondent. If doing so, however, the chair should remind the members that these "pleadings" are not evidence of any facts they may allege.
(e) The parties may agree before the hearing to designate specific exhibits as admissible without objection and, if they do so, whether the committee chair may provide copies of these admissible exhibits to the committee members before the hearing.
(f) The vice president of instruction and student services (or designee) shall provide reasonable assistance to the respondent, upon request, in obtaining relevant and admissible evidence that is within the college's control.
(g) Communications between committee members and other hearing participants regarding any issue in the proceeding, other than procedural communications that are necessary to maintain an orderly process, are generally prohibited without notice and opportunity for all parties to participate; any improper "ex parte" communication shall be placed on the record, as further provided in RCW 34.05.455.
(h) ((Each party)) Both parties may be accompanied at the hearing by a nonattorney assistant of ((his or her)) their choice. ((A)) Respondents may elect to be represented by an attorney at ((his or her)) their own cost, but will be deemed to have waived that right unless, at least four business days before the hearing, written notice of the attorney's identity and participation is filed with the committee chair with a copy to the student conduct officer. The committee will ordinarily be advised by an assistant attorney general. If the respondent is represented by an attorney, the student conduct officer may also be represented by a second, appropriately screened assistant attorney general.
(i) In circumstances involving more than one accused student, the student conduct officer may permit joint or separate hearings.
(2) Student disciplinary committee hearings - Presentation of evidence.
(a) Upon the failure of any party to attend or participate in a hearing, the committee may either (i) proceed with the hearing and issuance of its order or (ii) serve an order of default in accordance with RCW 34.05.440. If an accused student, with notice, does not appear before a student conduct administrative panel hearing, the information in support of the complaint is presented and considered in the absence of the accused student.
(b) The hearing will ordinarily be closed to the public. However, if all parties agree on the record that some or all of the proceedings should be open, the chair shall determine any extent to which the hearing will be open. If any person disrupts the proceedings, the chair may exclude that person from the hearing room.
(c) The chair shall cause the hearing to be recorded by a method that ((he or she)) the chair selects, in accordance with RCW 34.05.449. Panel deliberations are not recorded. That recording, or a copy, is property of the college, but shall be made available to the respondent upon written request. The chair shall assure maintenance of the record of the proceeding that is required by RCW 34.05.476, which shall also be available upon request for inspection and copying by the respondent. Other recording shall also be permitted, in accordance with WAC 10-08-190.
(d) The chair shall preside at the hearing and decide procedural questions that arise during the hearing, except as overridden by majority vote of the committee, and make rulings on the admissibility of evidence, motions, objections, and on challenges to the impartiality of board members, unless a hearing examiner is appointed as provided below. These rulings shall be made on the record. The Washington rules of evidence shall serve as guidelines for those rulings on the admissibility of evidence. Questions related to the order of the proceedings are also determined by the student conduct administrative panel chair.
(e) The vice president of ((instruction)) learning and student ((services)) success or a designee (unless represented by an assistant attorney general) shall present the case for disciplinary action. The facts justifying any such action must be established by a preponderance of the evidence.
(f) All testimony shall be given under oath or affirmation. The panel chair determines which records, exhibits, and written statements may be accepted as information for consideration by the panel. These rulings shall be made on the record. Evidence shall be admitted or excluded in accordance with RCW 34.05.452.
(g) The president of the college or designee, the chair of the student conduct administrative panel, the administrators assigned to the student conduct administrative panel, deans, and/or the student conduct officer have the authority to issue subpoenas.
(h) The accused student and the student conduct officer may arrange for witnesses to present pertinent information to the student conduct administrative panel. The accused students are responsible for informing their witnesses of the time and place of the hearing.
(i) The panel chair may accommodate concerns for the personal safety, well-being or fears of confrontation during the hearing by providing separate facilities, or by permitting participation by telephone, audio tape, written statement, or other means. In making such accommodations, the rights of the other parties must not be prejudiced and must have the opportunity to participate effectively in, to hear, and, if technically economically feasible, to see the entire proceeding while it is taking place.
(j) At the conclusion of the hearing, the panel shall permit the parties to make closing arguments in whatever form it wishes to receive them. The panel may also permit each party to propose findings, conclusions, and/or an order for its consideration.
(3) Supplemental sexual misconduct procedures. Both the respondent and the complainant in cases involving allegations of sexual misconduct shall be provided the same procedural rights to participate in student discipline matters, including the right to participate in the initial discipline action and to appeal the student conduct officer's disciplinary order.
Application of the following procedures is limited to student conduct code proceedings involving allegations of sexual misconduct. In such cases, these procedures shall supplement the student disciplinary procedures. In the event of conflict between the sexual misconduct procedures and the student disciplinary procedures, the sexual misconduct procedures shall prevail.
(4) Supplemental definitions. For purposes of student conduct code proceedings involving sexual misconduct, the following definitions apply:
(a) The "complainant" is the alleged victim of sexual misconduct. Complainant also refers to the college when the college files the complaint.
(b) "Sexual misconduct" is a sexual or gender-based violation of the student conduct code including, but not limited to:
(i) Sexual activity for which clear and voluntary consent has not been given in advance;
(ii) Sexual activity with someone who is incapable of giving valid consent because of being, for example, ((she or he is)) underage, sleeping or otherwise incapacitated due to alcohol or drugs;
(iii) Sexual harassment;
(iv) Sexual violence which includes, but is not limited to, sexual assault, domestic violence, intimate violence, and sexual- or gender-based stalking;
(v) Nonphysical conduct such as sexual- or gender-based digital media stalking, sexual- or gender-based online harassment, sexual- or gender-based cyberbullying, nonconsensual recording of a sexual activity, and nonconsensual distribution of a recording of a sexual activity.
(5) Supplemental complaint process. The following supplemental procedures shall apply with respect to complaints or other reports of alleged sexual misconduct by a student.
(a) The college's Title IX compliance officer shall investigate complaints or other reports of alleged sexual misconduct by a student. Investigations will be completed in a timely manner and the results of the investigation shall be referred to the student conduct officer for disciplinary action.
(b) Informal dispute resolution shall not be used to resolve sexual misconduct complaints without written permission from both the complainant and the respondent. If the parties elect to mediate a dispute, either party shall be free to discontinue mediation at any time. In no event shall mediation be used to resolve complaints involving allegations of sexual violence.
(c) College personnel will honor requests to keep sexual misconduct complaints confidential to the extent this can be done without unreasonably risking the health, safety and welfare of the complainant or other members of the college community or compromising the college's duty to investigate and process sexual harassment and sexual violence complaints.
(d) The student conduct officer, prior to initiating disciplinary action, will make a reasonable effort to contact the complainant to discuss the results of the investigation and possible disciplinary sanctions and/or conditions (if any) that may be imposed upon the respondent if the allegations of sexual misconduct are found to have merit.
(e) The student conduct officer, on the same date that a disciplinary decision is served on the respondent, will serve a written notice informing the complainant whether the allegations of sexual misconduct were found to have merit and describing any disciplinary sanctions and/or conditions imposed upon the respondent for the complainant's protection, including disciplinary suspension or dismissal of the respondent. The notice will also inform the complainant of ((his or her)) their appeal rights. If protective sanctions and/or conditions are imposed, the student conduct officer shall make a reasonable effort to contact the complainant to ensure prompt notice of the protective disciplinary sanctions and/or conditions.
(f) Hearings involving sexual misconduct allegations shall be closed to the public, unless accused student and complainant both waive this requirement in writing and request that the hearing be open to the public. Complainant, accused student and their respective attorney representatives may attend portions of the hearing where argument, testimony and/or evidence are presented to the student conduct administrative panel.
(g) The complainant has the right to appeal an order of the student conduct administrative panel consistent with WAC 132R-04-150. In the event of an appeal by the accused student or complainant, the chief student conduct officer shall provide a copy of the appeal to the nonappealing party. The complainant and accused student have the right to be accompanied by an advisor of their choosing during the appeal process at their own expense, but will be deemed to have waived that right unless they file a written notice of the attorney's identity and participation within four business days before the hearing with the chief student conduct officer.
AMENDATORY SECTION (Amending WSR 16-15-011, filed 7/8/16, effective 8/8/16)
WAC 132R-04-150 Appeal from student disciplinary committee initial order.
(1) Appeal from student disciplinary committee initial order.
(a) A respondent who is aggrieved by the findings or conclusions issued by the student disciplinary committee may appeal the committee's initial order to the president by filing a notice of appeal with the president's office within twenty days of service of the committee's initial order.
(b) The notice of appeal must assign error to specific findings of fact and/or conclusions of law in the initial order and must contain argument regarding why the appeal should be granted. The president's review on appeal shall be limited to a review of those issues and arguments raised in the notice of appeal. Review shall be restricted to the record created below.
(c) The president shall provide a written order to all parties within forty-five days after receipt of the notice of appeal. The president's decision shall be final.
(d) The president may((, at his or her)) exercise discretion((,)) to suspend any disciplinary action pending review of the merits of the findings, conclusions, and disciplinary actions imposed.
(e) The president shall not engage in an ex parte communication with any of the parties regarding an appeal.
(2) Supplemental appeal rights for sexual misconduct cases.
(a) In addition to the appeal rights provided to the respondent above, a complainant may also appeal the following actions by the student conduct officer ((may be appealed by the complainant)):
(i) The dismissal of a sexual misconduct complaint; or
(ii) Any disciplinary sanction(s) and conditions imposed against a respondent for a sexual misconduct violation, including a disciplinary warning.
(b) A complainant may appeal a disciplinary decision by filing a notice of appeal with the conduct review officer within twenty days of service of the notice of the discipline decision provided for in WAC 132R-04-140. The notice of appeal may include a written statement setting forth the grounds of appeal. Failure to file a timely notice of appeal constitutes a waiver of this right and the disciplinary decision shall be deemed final.
(c) If the respondent timely appeals a decision imposing discipline for a sexual misconduct violation, the college shall notify the complainant of the appeal, and provide the complainant an opportunity to intervene as a party to the appeal.
(d) Except as otherwise specified in this supplemental procedure, a complainant who timely appeals a disciplinary decision or who intervenes as a party to respondent's appeal of a disciplinary decision shall be afforded the same procedural rights as are afforded the respondent.
(e) Respondents and complainants shall have the right to be accompanied by a nonattorney assistant of their choosing during the appeal process. Complainant may choose to be represented at the hearing by an attorney at ((his or her)) their own expense, but will be deemed to have waived that right unless, at least four business days before the hearing, he or she files a written notice of the attorney's identity and participation with the committee chair, and with copies to the respondent and the student conduct officer.
(f) During the proceedings, complainant and respondent shall not directly question or cross examine one another. All questions shall be directed to the chair, who will act as an intermediary and pose questions on the parties' behalf.
(g) Hearings involving sexual misconduct allegations shall be closed to the public, unless respondent and complainant both waive this requirement in writing and request that the hearing be open to the public. Complainant, respondent and their respective nonattorney assistants and/or attorneys may attend portions of the hearing where argument, testimony and/or evidence are presented to the student conduct committee.
(h) The student conduct committee will serve complainant a written notice indicating that an initial order has issued on the same date that the initial order is served on respondent. This notice shall inform the complainant whether the sexual misconduct allegations were found to have merit and describe any sanctions and/or conditions imposed upon the respondent for complainant's protection. The notice shall also provide directions on how the complainant can appeal the decision to the president.
(i) Complainant may appeal the student conduct committee's initial order to the president subject to the same procedures and deadlines applicable to other parties.
(j) The president will serve complainant a written notice indicating that the appeal has been resolved on the same date that the final order is served upon the respondent. This notice shall inform the complainant whether the sexual misconduct allegation was found to have merit and describe any sanctions and/or conditions imposed upon the respondent for the complainant's protection, including suspension or dismissal of the respondent.
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