Policy 203.5.2 – Appeals
I. Preamble:
A. The purposes of this procedural policy include but are not limited to the following:
1. To provide to the constituencies of the board of regents an administrative procedure to exercise any legal right due from the board.
2. To assure the board that the plenary authority it maintains over the Montana University System is exercised with knowledge of the facts relevant to any decision.
3. To minimize litigation between the university system and its constituencies by allowing the board to become informed as to any disagreement and to allow the board to exercise its authority to remedy a grievance.
II. Board policy:
A. Within 30 days of a final campus decision, a party adversely affected by the decision may appeal to the commissioner of higher education, unless a board of regents’ policy or an employment agreement explicitly provides that the campus decision is the final administrative decision.
1. Persons alleging that a university system employee has violated state ethics or conflict of interest statutes may bring that matter to the attention of the president or chancellor of the campus. A campus decision on such a complaint may be appealed under this policy once a final decision has been issued by the president or chancellor or their designee.
2. The commissioner may limit the scope of review on appeal to procedural matters.
3. The commissioner may not substitute the commissioner’s judgment for the substantive decision made by the campus, unless the campus decision was arbitrary and capricious, clearly erroneous based on the facts in the record, or violated some legally protected right of the appealing party.
B. Any party adversely affected by the commissioner’s decision may appeal to the board within 30 days of the commissioner’s decision pursuant to procedure (III.B) below.
C. This policy does not apply to any matters that are subject to the grievance procedure of a collective bargaining contract.
III. Procedures:
A. Appeals from the final campus decision must be addressed to the commissioner in writing. The appealing party must attach a copy of the final campus decision being appealed. Appeals must also state the basis for the appeal and the requested relief. After receiving the appeal, the commissioner will notify the party of the scope of review and the procedure to be followed. The appealing party must provide the president or chancellor with a copy of all materials sent to the commissioner.
1. A party must follow the procedures established at the campus level before appealing to the commissioner. In the absence of applicable campus procedures, the party may appeal a determination by a campus official to the official’s immediate supervisor. The final administrative decision at the campus level is that of the president or chancellor or their designee.
2. The commissioner may attempt to achieve an informal disposition of the appeal. An informal disposition is binding only if the appealing party and the president or chancellor agree to the proposed resolution.
3. Subject to the provisions of paragraph (III.A.4), the commissioner will decide an appeal based on materials submitted by the appealing party and by the campus. The parties to the appeal have no right to introduce materials or raise issues that are not part of the campus record. A full or partial hearing may be conducted if:
a. a board policy establishes the right to a hearing on the particular subject matter; or
b. failure to conduct a hearing would violate the appealing party's constitutional due process rights.
4. The commissioner may request that the parties submit additional materials for review. The commissioner may also consider other relevant matters. The commissioner may remand the matter back to the campus, affirm, reverse, or modify the campus decision, or present the appeal to the board for its consideration.
B. Appeals from the commissioner’s decision to the board must be made within 30 days of receiving the commissioner’s decision and must be in writing and addressed to the board in care of the commissioner. The appeal must state the basis for the appeal and the requested relief. The commissioner will place the matter on the board’s agenda at an upcoming meeting, and the board will determine whether to accept the appeal. If the board accepts the appeal, it may request a full or partial hearing or no hearing. The standard of review set forth in II.A.3 of this policy applies to the board’s review of the commissioner’s decision. The decision of the board affirming, reversing, modifying, or declining to hear the appeal is the final administrative determination of the university system.
C. No matters subject to this policy will be considered final until a party exhausts the procedures of this policy by presenting the matter to the board of regents. When a party fails to exercise the appeal rights provided by this policy, the party accepts the lower level decision as the final decision and waives the right to contest the matter further within the university system.
D. Consistent with the Montana Administrative Procedures Act, a petition must be filed with the district court within 30 days after service of the university system’s final written decision.