UA Codes and Judicial Committee

Codes and Judicial Committee

Present

Kevin Clermont, Anna Ferry, Thomas van Haaren, Gary Stewart, Rachel Weil, Kathy Zoner

Ex Officio

John Cetta, Mary Beth Grant, Evan Magruder

J. Cetta called the meeting to order at 2:47pm.

Recommendations of the Judicial Administrator

1. 1 had been previously adopted.

2 Change to Hazing Language

K. Clermont proposed grammatical changes to item #2, which were adopted.

Committee adopted modified recommendation #2 unanimously.

3 Clarify use of deferred sanctions

K. Clermont said that probation as provided in the code already has the same effect as a deferred sanction.

E. Magruder said that deferred sanctions muddy the waters and lead to confusion about what penalty is at stake for the accused and the hearing board. The person may think they are receiving one penalty and then be hit with a stiffer penalty later on because of another unrelated offense.

M. B. Grant said she does not believe that deferred sanctions are never intended to be used as a coercive tool. In some cases deferral helps a student to avoid having a penalty applied that would otherwise appear in their record.

J. Cetta asked if there would ever be a situation where a student with a deferred sanction would not know the possible consequences of a later violation.

E. Magruder said that deferred sanctions, unlike probation, do not have the possibility of appeal to a hearing board and thus deprive the hearing board of the ability to decide whether the additional deferred sanction is warranted.

R. Weil asked whether in the case of the second violation what is required to determine that the second violation occurred?

M. B. Grant said a finding (e.g. a hearing board decision or admission of guilt) is required.

E. Magruder clarified that the issue is that negotiation of a deferred suspension leaves the possibility of a student believing he or she has negotiated a good deal without ever benefitting from representation or the hearing and review board.

M. B. Grant said that no severe sanction (suspension or expulsion) can be approved, including a deferred sanction, without the hearing board chair weighing in.

J. Cetta said something that might address these concerns is if deferred sanctions would have to be approved by the hearing board.

K. Zoner said such a practice would be exactly like probation.

M. B. Grant said there have been several situations where a student is found to violate probation�.

R. Weil asked if the board is aware of student’s disciplinary record when determining what penalty to impose?

M. B. Grant said yes, but they are not aware when determining whether a violation occurred.

R. Weil said she does not understand why the same effect of a harsher effect in a second sentence cannot simply be imposed by the hearing board on the second offense. If a person doesn’t deserve a written reprimand on the first offense, give only an oral warning. On the second offense, they can be given a harsher penalty.

K. Clermont confirmed the code does provide for appeal of a sanction for violation of probation so this deferred sanction alteration is providing a new kind of power to the Judicial Administrator. Deferral of a sanction ultimately imposed on the student is already permitted by the code.

R. Weil said there is a difference between deferring a penalty but still requiring its ultimate application versus conditioning its imposition on future behavior. She supports the former but not the latter.

M. B. Grant said she took issue with characterization of the proposal as coercive. Probation appears on a student’s permanent record, so deferral provides a means to avoid that harm to the student but still allow for progressive discipline.

R. Weil said that it appears OJA is looking for a new punishment, perhaps a lesser punishment, that fits the crime but does not yet exist: a prohibition that can be removed from the record.

R. Lieberwitz proposed by email the possibility of having a disciplinary sanction expunged from the record.

R. Weil motioned to defer discussion.

K. Clermont said the clarified severity of probation changes the discussion.

R. Weil said that a record that cannot be expunged is a problem for some students. Know anecdotally that students can explain some violations to satisfaction of law schools.

M. B. Grant said there is a system available to address student concerns about disciplinary violations on the permanent record.

J. Cetta moved to the next item without dissent.

4 Changes to limitations period

M. B. Grant said there are some cases where the complainant is not emotionally prepared to come forward immediately, but may come forward after a certain time. The proposal is for a period of two years for reporting of the most serious violations. To allow time for investigation of fraud, which is often brought to attention too late after it occurs to allow proper time for researching.

K. Clermont suggested it would be more appropriate to say “one year from the discovery of the alleged fraud”.

R. Weil asked for a definition of “discovery”?

M. B. Grant said it is an ambiguous term.

J. Cetta said if the problem is with delays in other offices, why not get at the root of the problem and say within 60 days from the issue being reported to the OJA?

M. B. Grant said that often, such fraud is reported multiple times. Do we mean the first contact? Or after the audit office has prepared a report which could be several months later.

T. van Haaren said “fraud” is not clearly defined.

K. Clermont said to cast a wide a net it would be more appropriate to say “any alleged violation involving fraud”.

J. Cetta said he felt it would be better to identify the specific fraud violations.

K. Clermont proposed changes to the recommendation, including covering any alleged violation involving fraud and setting an ultimate statute of limitation of three years.

“In cases where the charge involves fraud, the period shall be one calendar year from the alleged fraud or three calendar years from the discovery of the alleged fraud…”

The committee adopted the change to item #4 unanimously.

Professor Lieberwitz emailed concern about overbroad extension of the limitations period.

J. Cetta said there seems to be a valid point in that argument.

M. B. Grant said yes there are certainly particular offenses for which a longer statute of limitations seems likely to allow more people to come forward, particularly sexual assaults. But it seems that there are other situations where it should be extended.

K. Clermont said there seem to be some offenses that are comparably much less traumatic and therefore less deserving of a longer statute of limitations in the article. Also, the greater the length of time elapsing, the less evidence available based on which to make a determination.

M. B. Grant expressed agreement that some of items in the list should not need to be covered. She based the designation on a review of the list and found items a and g and most in between to be of the serious kind where some students have come forward more than a year later because of emotional trauma.

T. van Haaren suggested allowing until the end of the semester which occurs one year after the alleged offense.

T. van Haaren moved to table, and the committee tabled item #4.

5 Summer hearings

M. B. Grant said that because hearings may happen in the summer, it would be valuable to immediately seat newly appointed board members in June.

K. Clermont asked when the training will be?

M. B. Grant said they arrange training on an ad-hoc basis for new appointees whose service is needed before the annual orientation meeting.

A. Ferry said there are many members who may not be available over the summer even if they are still current students.

K. Zoner left the meeting.

A. Epstein said it would be helpful to explicitly delegate interim authority to the UA executive committee to make interim appointments over the summer.

Discussion continued about the issues of appointing students to serve on hearing and review boards in the summer.

J. Cetta moved to table until next meeting.

Next Meeting

J. Cetta asked that another member present chair the meeting. He will not be in Ithaca for March 5 or March 19.

M. B. Grant asked when more applicants for UHRB positions would be ready for committee’s review.

J. Cetta set the next meeting date for 2:30pm on March 12.