UA Codes and Judicial Committee

Codes & Judicial Committee
9/10/07

Present: Kathleen Rouke (staff), Andy Cowan (student), Bob Kay (faculty), Jamie Rogers (JCC), Ari Epstein (Assemblies office), Marty Hatch (faculty, UA liaison), Kevin Clermont (faculty), Jack Cao (student), Manuel Allende (student), Linda Falkson (JA), Gary Stewart (staff), Kate Dukes (student trustee), Peggy Beach (Assemblies office), Mary Opperman (VP Human Resources), Dan Aloi (Chronicle), Rachel Dorfman-Tandlich, Kathy Zoner (CU police), Susan Murphy

Elections: Chair: Kathleen Rourke Vice-Chair: Andy Cowan Co-Secretary: Jamie Rogers Co-Secretary: Jack Cao

Report of UA: Praise for CJC; desire for engagement is present, good climate for cooperation UA Regaining vigor Concerned w/ Code revisions - good climate for cooperative consensus Dates for UA: Hope to have 2 meeting/month October 24th (tentative) November 14th (aim to submit report on Code by this date) November 28th December 5th

Revising the Code: Must have report to UA by end of semester CJC summer work: Best/worst of Krause report; incorporate community input into a draft Code changes in response to President’s letter

Proposed Timeline: Report due October To UA by November (see above schedule) To pres by December

Open Forum: Can we do open forum in early October?

Cowan: need to meet beforehand

Consensus: yes

Epstein: October 1st, 4:00 — 6:00pm

Location: HAC auditorium or Kaufman auditorium (memorial hall not available)

Kaufman: Goldwin Smith Hall

Logistical problems: must bring own chairs

Format:

CJC in semi-circle; community in rows in front of members

Timing:

Tuesday, October 2d:

Benefits:

• People remember past weekend
• Skorton senior staff meeting till 5:00, but they could come after.
• Could get Mem Hall in WSH
• Consensus for Tuesday (pending info about senior staff meeting)

Hatch: Senior Staff meeting is on Monday, 2:00 — 5:00, but senior staff can send represenatives

Rourke: Tuesday it is Oct 2nd, 4:00–6:00 at WSH Memoroial Room Video?

Rourke: Yes

Comments pm revised Code:

Cowan: Structurally beautiful

Concerns:

• Right to counsel: Never spelled out (whether counsel for accused is allowed ot represent the accused or merely to be an advisor/counselor, as Krause proposed)

Pg 18 and pg 27: Right to be advised by somebody.

Response (Clermont): This proposed Code changes are structural; we just pulled the language from the Code. We could spell this out further, but that would be going beyond the Code (something for the committee, not for summer project)

Falkson: It is routine practice for counselors to represent them

Clermont: Right to counsel implies right to representation (like the Constitution)

Cowan: It should be said explicitly

Rourke: When we present to community we should be clear about this. Suggested doing a table with original parts and changes

Clermont: This would be hard to do. It might be better to state that the code is the same, except in the following ways

Rourke: Put major points in a bulleted list

Cowan: Does anyone have a problem with adding a sentence saying the right to counsel means the right to representation?

Rourke: concerns with getting it done by October

Kay: There is a precedent for having it interpreted in this way

Dukes: This was prime area of concern for students and if you add some sentences here and there this is a good place to do this.

Hatch: Right to counsel means parity with JA’s office

3-day waiver of jurisdiction:

Clermont: Motivation was that there was a case where, on appeal, a student who was suspended, and committed offense while suspended, that there was no jurisdiction (that Code did not apply)

Cowan: My understanding that students don’t contact JCC until a day before a hearing Rogers: Concerned that students will come to our office the day before the hearing

Falkson: everybody’s interest if this is raised at the outset

Cowan: doesn’t want to prejudice student

Hatch: Are we bending over backwards when we don’t have to. Students aren’t stupid and be responsible for actions. If they can realize by time of appeal, they can raise it, but to have the whole process go forward is being overly generous.

Kay: Should be raised as soon as possible; someone should be obligation to raise it (not just accused)

Falkson: there are a number of ways that this gets raised

Dorfman-Tanick: outset of hearing

Falkson: hearings last hours, sometimes days

Clermont: 3 days came from 3 day term to get

Consensus: waiver from the start of the hearing

Presidential override:

Clermont: not a substantive change (pulled from old code) Failure of complainant to appear:

Clermont: Complainant won’t have right to remedy if they don’t appear (but accused still subject to remedies)

Cowan: suggested nonsubstantive change to make it more clear Where complainant can’t testify may they testify via affidavit

Cowan: Doesn’t say whether or not you can submit this

Clermont: Implication is that statement is admissible

Cowan: change “need not” to “may not” and strike “by the JA.”

Zoner: clarification, this change is absent the presence of the accuser

Burden of Proof being on complainant:

Cowan: Should be on JA, not accused

Clermont: pg 31, para 4 refers to JA bringing case on behalf of complainant and CU

Cowan: Satisfied

Employee jurisdiction:

Cowan: seems complicated asked employee reps

Kay: term “clearly” referring to their scope of employment is vague who gets to make the determination (clearly from standpoint of employee; employer; HR; staff and labor relations; JA?)

Zoner: There is a specific chain of authority

Kay: (2)(a) is confusing — Should spell out where to go to determine to determine scope of employment (HR policy)

Clermont: Email regarding incitement (g) is a violation of 1st Amd; although 1st amd doesn’t apply to us because we’re not government, do we want a Code that violates 1st amd?

1st amd: can’t get someone unless it incites imminent and likely unlawfulness

Hatch: remove urge and talk about incite next semester

Kay: leave it in because it can be used to co-opt others to do the crime

Consensus: remove urge

Hatch: Email regarding victims rights: Once we pass this revision we can then consider substantive issues that community is concerned about

Employment-related matters vs. Code violations:

Kay: Concerned that Code isn’t specific enough on how to proceed where employee violates the Code

Clermont: there is a distinction between procedures of the Code and violations of the Codes procedures are inapplicable to employees but substance of Code applies to everybody

Kay: this has nothing to do with this semester, but we should look at grievance process

Rourke: it is within our purview, but we’ve never exercised this jurisdiction

President’s letter:

Maintained independence of system:

Rourke: Yes committee has and will include this in the letter

Evidence: Clear and convincing vs. Preponderance

Rourke: Kept it as it was in Code, did not accept Krause Report

Those subject to Code:

Rourke: kept as it was in Code,

Off-campus jurisdiction:

Added: This Title shall also apply to conduct elsewhere if the Judicial Administrator, with the approval of the President or his or her designated representative, considers the conduct to constitute a serious violation of this Title in that the conduct poses a substantial threat to the University’s educational mission or property or to the health or safety of University community members.

Falkson: This should be a community decision

Dorfman-Tanick: Concerned with what is a truly serious violation

Rogers: concerned with the lack of specification of “designated representative.” President could designate the JA to make the decision.

Rourke: make clear that there are two people making this decision

Murphy: unnecessary complexity

Rourke: complexity is reduced: Title V incorporated into Title I. One problem with complexity: Left in Title III and Title IV-required by law Appropriateness of penalties:

Clermont: no change to penalties, but discussion of appropriateness of penalties

Added: Without intending to limit the assessor’s ultimate discretion, certain types of violations are so fundamentally inconsistent with the University’s educational mission that, absent unusual mitigating factors, a sanction of substantial suspension or dismissal ordinarily should be imposed. Such violations include acts of violence, including sexual violence; violations that are motivated by bias based on disability, ethnicity, gender, national origin, race, religion, sexual orientation or affectional preference, or any other suspect or invidious category; or any other violation that substantially threatens the University’s educational mission or property or the health or safety of University community members.

Clermont: could add this to off-campus jurisdiction

Dorfman-Tanick: This is a sample of things that constitute a serious threat

Rourke: Don’t want to make this an implicit exhaustive list of what constitutes a substantial threat for purpose of exercise jurisdiction

Next steps:

Rourke: Think about cover letter to community

Web presence:

Rourke: Make clear community only has 2 weeks to respond

Clermont: Can we put this up on the internet as an html document and have people comment on it.

Rourke: this could be fleshed out at next meeting

Epstein: delegate to sub committee to publicizing-not at this time

Next Meeting: Monday Sept. 17th, 4:15 PM — 5:30 PM, room Day Hall B16 Agenda: publicity, open forum, cover letter summarizing key changes