COMPLAINT PROCEDURES
A. General Provisions
1. Exclusions: The following type of complaints or matters will not be handled under this policy:
a. Complaints arising in matters involving rights provided for under Title IX which provides equal education and employment opportunity must be provided by the District.
b. Matters involving a demand for a grade change.
c. Matters elsewhere covered by Board policy, such as matters involving employee grievances under a collective bargaining agreement with the District.
d. Matters covered by the Fremont-Newark Community College District Student Discipline and Due Process Policy August 1972 as amended.
e. Matters which are excluded by operation of state or federal law, including court decisions.
f. Matters about which court litigation is in process or deemed in the judgment of County Counsel or other legal advisors to the Board of Trustees or the President/Superintendent of the District to be likely or imminent.
2. Inclusion: At the discretion of the person bringing the complaint, the following types of complaints or matters will be handled under this policy:
a. Matters not excluded under Section 5.1.A.1 above.
b. Any complaint or challenge by any person, including any person who was a student, classified employee, certificated employee at the time the alleged facts which form the basis of the complaint arose, against any other person or persons who were, at the time of the alleged facts which form the basis of the complaint, students, classified employees, certificated employees of Fremont-Newark Community College District, which said complaint alleges that the person or persons who are the subject of the complaint have violated the written policies of the Fremont-Newark Community College District in a manner detrimental to the complainant(s).
c. As further detailed below, complaints will be processed only if they are brought in a timely fashion and for a purpose within the powers of the Fremont-Newark Community College District.
3. General Policy: In pursuit of the legitimate ends of an educational community, each member of that community should be free of improper action by other members of the community. It is the purpose of this document to provide standardized, straightforward procedures which balance the concerns of the complainant(s) against those of the person(s) who are the objects of the complaint(s) in order that a fair resolution of the problem can be made without undue expenditure of effort, personnel, money, or other resources which could be otherwise utilized to achieve the mutual goals of all, relative to the central missions of an educational endeavor.
4. Waiver by Complainants(s) of Certain Rights: Since in certain types of complaints or grievances, the person(s) against whom such complaint(s) lodge may find it difficult or impossible to respond without having access to or making use of certain Fremont-Newark Community College District records, including those covered under federal and state laws relating to family and student privacy. Each person who utilizes the complaint procedures herein provided shall be required to execute a waiver permitting such documents as are appropriate and necessary to be used in the investigation, hearing, and resolution of any such complaint. Such waiver form shall be obtained from the office of the President/Superintendent of the District, who shall be consulted whenever a question arises about whether the waiver executed by a person included permission to utilize in the proceeding a particular type of material (such as grade or attendance records, confidential evaluations or letters, or the like).
5. Burden of Proof: The burden of proof regarding the validity of a complaint shall be upon the complainant.
6. Retaliatory Action: Any retaliatory action of any kind taken by an employee or student of the Fremont-Newark Community College District against any other employee or student of the District as a result of that person's seeking redress under these procedures or participating in behalf of the person(s) who is/are contesting the existence of a valid complaint or otherwise being involved in the complaint procedures herein provided is prohibited and shall be regarded as a separate and distinct complaint under these procedures.
7. No Response Obligatory: No person shall be obliged to respond to complaints filed under this policy against him/her nor to be involved in any of the proceedings relating thereto.
B. Informal Procedures: Any person(s) believing that a legitimate basis for filing a complaint under these policies exists shall
1. First attempt to resolve the matter by conferring directly with the person(s) against whom the complaint is otherwise to be made. The complainant(s) should carefully note the exact time, date, and place where such meeting and conferring takes place.
2. If no satisfactory resolution to the matter results, the complainant(s) should then confer, if still intending to pursue the complaint, with the appropriate supervisor of the person(s) against whom a complaint may be made. Such conference should be scheduled not later than thirty (30) days after the conference with the person(s) against whom the complaint is to be made unless some extraordinary circumstances make it impossible to meet during that 30-day period. It is intended that all potential complaint(s) be processed as soon as possible after the alleged incidents comprising the basis for the complaint so that all persons involved will have an opportunity to make their presentations while the facts are still clearly in mind.
Any person in doubt as to the person who is the appropriate supervisor of the person(s) against whom complaints may be made should make application to the President/Superintendent of the District who shall personally or within five (5) working days give written instructions to the complainant as to the appropriate supervisor of the person.
If the complaint is against a student or students, this step may be complied with by bringing the matter to a full-time counselor.
3. If within five (5) working days of the consultation with the supervisor, the supervisor finds that a legitimate complaint has been made, the supervisor shall bring the matter to the attention of the person designated by the President/Superintendent who shall take appropriate steps to enforce the policies, rules or regulations to resolve the complaint. The complainant shall be notified promptly that the supervisor has taken such action. If, however, the supervisor finds no legitimate complaint or grievance has been made, the supervisor shall within five (5) working days of the consultation with the complainant so notify the complainant in writing.
C. Formal Procedures: Any person(s) believing that a legitimate basis for filing a complaint under these policies exists may utilize the following formal procedure in the following situations:
1. If the Informal Procedures of Section 5.1.B have not resulted in resolution of the complaint to the satisfaction of the complainant(s), or if the complainant(s) do not want to use the informal procedure.
2. If the respondent to the complaint wishes to appeal the resolution of the complaint which was reached under the informal procedures.
In either situation, the complainant(s) or respondent(s) may submit a request in writing to the President/Superintendent who shall approve or disapprove the request for formal proceedings within ten (10) days or as soon thereafter as possible. If the request has been disapproved, the President/Superintendent shall state the reasons substantiating such disapproval in writing. An appeal to the Board of Trustees from such disapproval may be made by person(s) still seeking formal proceedings.
3. All formal procedures shall be conducted in closed sessions conducted by the appropriate College administrator in order that he/she might hear the complaint and receive information from such persons directly involved as may be appropriate to evaluate the complaint.
4. During such formal procedures, including presentation of information and arguments, the complainant(s) and one accompanying person, and the respondent(s) and one accompanying person shall have the right to be present. The proceedings shall be closed to all other persons. The presiding administrator shall be notified of the identities of accompanying persons at least three (3) working days prior to the proceedings.
5. All information gained as a result of participation in the formal proceedings shall be held in the strictest confidence by the person who is conducting the proceedings and all persons present.
6. All notes, records, documents, or exhibits received during the formal proceedings shall be secured in the office of the person holding the proceedings, and shall at the conclusion thereof be turned over to the office of the President/Superintendent for safekeeping. Any such records shall be destroyed no later than three (3) years after the last official action has been taken in regard to the complaint(s) involved.
7. Following the conclusion of the proceedings, the person conducting them shall report his/her findings together with his or her reasons for recommending how the complaint(s) should be disposed of to the President/Superintendent of the District. These papers shall be confidential and privileged, and shall be so treated both by the preparing/forwarding person and by the recipient President/ Superintendent.
8. The person who has conducted the hearing should make every effort to avoid duplicative presentation of materials or the involvement of persons who do not have direct involvement in the matter at hand. She/he should also make every reasonable effort to conclude the investigation and present his/her recommendations to the President/Superintendent within fifteen (15) working days after the formal proceedings have first commenced.
9. Upon receipt of the findings/recommendations of the person who has held the formal proceedings, the President/Superintendent shall make a decision within fifteen (15) working days. A brief summary of the recommendation shall be mailed by the President/Superintendent to the complainant(s) and to the respondent(s). If within the fifteen (15) days, the President/Superintendent is unable or unwilling to make a decision for whatever reason, he/she should communicate that matter to the Board of Trustees who shall take such action as it deems appropriate.
10. The decision of the President/Superintendent shall be final, unless the petitioner complainant(s) or respondent(s) shall make written appeal for review to the Board of Trustees within fifteen (15) working days of receipt of notification of the President/ Superintendent of the final decision.
D. Appeal to the Board:
1. Appeal of Decision of the President/Superintendent:
a. Upon receipt of a written appeal of the final decision of the President/Superintendent, the Board of Trustees shall decide at its next Board meeting whether to hold a hearing to hear the appeal or to deny the appeal.
b. Board decision to deny the appeal shall be nonappealable, and the Board need not give its reasons for such denial.
c. If the Board of Trustees decides to hold a hearing, such hearing shall be ordered within thirty (30) days after receipt of the appeal.
2. Direct Petition to the Board without utilization of either formal or informal procedures above will not be permitted except in the most unusual and compelling circumstances, such as that the complainant(s) have reason to believe that there is little expectation that they will receive impartial hearing because of the position of the person(s) against whom the complaint is lodged. Any such person(s) believing such a situation exists, should communicate such facts directly to the Board of Trustees through its President requesting a direct petition for Board hearing. The Board's decision as to whether to grant or deny such a request shall be final.
3. Procedure for Hearing: Until further detailed procedures are adopted, the following shall govern the procedure for hearing direct petitions (under Section 5.1.D.2 above) or appeals from decisions of the President/Superintendent before the Board:
a. All appeal hearings before the Board shall be held in executive session of the Board of Trustees unless the appealing respondent(s) request an open hearing. In the event any one among several respondents requests a closed hearing, the hearing shall be closed.
b. Complainant(s) and respondent(s) shall have the right to appear in person on their own behalf, with a single counsel or other representative as each shall consider necessary and to be heard. However, the Board may require some advance showing as to the content of proposed statements in order to avoid repetition or presentation of lengthy irrelevant materials. It is the sole discretion of the Board to set time limits for presentations.
c. The Board of Trustees at the appeal or hearing stage shall have made available to it all written documents concerning the complaint, hearings, and appeals, but shall not be considered bound by any of the findings of fact or recommendations made at any earlier stages.
d. The Board of Trustees may consult in executive session individually with the President/Superintendent or other persons before making its findings and decisions.
e. The findings and decisions of the Board of Trustees on said appeal or initial petition shall be final and conclusive on all parties. As necessary, the Board of Trustees shall direct the President/Superintendent to take the appropriate administrative steps to resolve the complaint.
f. The decision of the Board of Trustees shall be issued in a brief confidential memorandum not later than ten (10) days after the final Board of Trustees' action on the complaint. Such decision shall be kept with the confidential personnel records of the Board. The Board in its sole discretion shall determine whether such written memorandum shall be released to the participants or any of them, and whether the contents of the memorandum shall be released to the press.
E. Time Limits for Complaints and Miscellaneous: It is the purpose of this document to present orderly procedures through which complaints can be processed so that legitimate complaints can be resolved, and nonlegitimate ones can be disposed of finally. A person who feels a legitimate cause for filing a complaint exists should act within thirty (30) days from the time that the situation giving rise to the complaint occurs or is discovered. Complaints which have not been acted upon seasonably can be denied.
Persons who utilize these Complaint Procedures should make their complaint(s) in writing at the earliest practical time in order that those processing the complaint can be informed accurately as to the alleged facts of the complaint. The complaint must be reduced to writing prior to taking the complaint to the respondent's supervisor, the President/Superintendent, or the Board of Trustees under these procedures. In subsequent processing of the complaint, matters not encompassed within the original complaint as submitted in written form shall not be considered except with the consent of either the President/Superintendent or the respondent.
F. Determination of Appropriate College Administrator to Conduct Formal Procedures Under Section 5.1.C Above: The President/Superintendent shall maintain an up-to-date organization chart which shall show the current administrative organization of Fremont-Newark Community College District and College staff. The current chart is hereby appended as Appendix A to this document. In the event that the complainant(s) and respondent are both of same status (for example, student vs. student, or faculty in one department vs. faculty in another department) the appropriate college administrator would be the Vice President, Student Services, in the first case, and the Vice President, Instruction, in the second. A complaint of a librarian against a custodian would involve as the appropriate administrator the Dean of Administrative Services. In the event, however, that the "appropriate administrator" is himself/herself involved personally as either the complainant or respondent in the particular matter, the President/ Superintendent would have to decide within ten (10) working days of the time the written request for formal proceedings has been made which such College administrator would be deemed the "appropriate College administrator." "If the President/Superintendent denies or disapproves any requests for formal hearing, for whatever reason, he/she should promptly notify the Board of Trustees in writing of denial, with a statement of reasons for the denial.
G. Complaints Against President/Superintendent or President/ Superintendent's Immediate Staff: Any person having a serious complaint involving the President/Superintendent of the District or the immediate staff should bring the matter to the attention of the Board of Trustees since it is recognized that the above policies will be inappropriate. Should the Board of Trustees meeting in executive session decide to proceed with any such complaint, it will utilize the general procedures set forth above under Section 5.1.D.3.
5.2 REGULATIONS FOR THE INVESTIGATION AND RESOLUTION OF COMPLAINTS OF UNLAWFUL DISCRIMINATION - replaced with AP 3435 Ohlone Community College District Procedures For Handling Complaints of Unlawful Discrimination.