Professional Protection Faculty-University Policies - Carnegie Mellon University

Excerpted from University Bylaws

Article VIII:  Statement of Policy on Professional Protection Regarding Faculty Members

Section 8.1 Support of Faculty Freedoms

It is important that faculty members (including Regular Faculty, Research Faculty, Teaching Track Faculty, Special Faculty, Part time Faculty, Archivists and Librarians) as defined in the Constitution and Bylaws of the Faculty Organization of Carnegie Mellon University have freedom in carrying out their normal academic activities within the framework of the institution’s rules, regulations, and policies, as they may then exist, and society’s laws, regulations and norms.  Consistent therewith, the University has a role in assisting the Faculty to maintain appropriate academic freedom in the classroom and in research activities, in judging fellow Faculty and in evaluating and counseling students, and in engaging in public service activities.  Faculty members may be exposed to potential liability or legal expenses arising out of their normal activities in these areas, and this may serve to inhibit their freedom of action.  It is, therefore, consistent with Carnegie Mellon’s role as a supporter of Faculty freedoms for it to protect Faculty to the extent set forth in the paragraphs found below against financial liability or legal expenses resulting from activities directly related to or incidental to the purposes of the University.  In addition, the Provost, Vice, Associate and Assistant Provosts, Deans, Associate and Assistant Deans are covered by the provision of this Policy.  Also covered are students and staff when they serve on the Academic Review Board, the University Disciplinary Committee, and the Greek and dormitory disciplinary committees.  For the purposes of this Article, the term “Faculty member” includes those mentioned above.

Section 8.2 Personal Liability of Faculty

(a)     Elimination of Liability.  It is the policy of Carnegie Mellon, to the fullest extent permitted by law, to provide counsel for and to indemnify any Faculty member who was or is a defendant or is threatened to be made a defendant or subpoenaed as a witness, in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action or claim by or in the right of Carnegie Mellon), by reason of the fact that, as a representative of the University, he or she engaged in “protected activities” as defined herein or otherwise acted as a representative of Carnegie Mellon, if his or her actions which gave rise to the action, suit or proceeding and his or her involvement therein were taken in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of Carnegie Mellon and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful and if the Faculty member cooperates, as reasonably requested by Carnegie Mellon, in defense of the action, suit or proceeding. Indemnification includes payment of expenses, actually and reasonably incurred on his or her behalf in connection with such action, suit or proceeding, as well as judgments and fines rendered therein and accounts paid in settlement (if approved as set forth below). This Statement of Policy does not provide any benefits to a Faculty member in a case where he or she is a plaintiff.  The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself create a presumption that the Faculty member did not act in good faith and in a manner which he or she reasonably believed to be in, or not opposed to, the best interests of the University, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful.

(b)     Nature and Extent of Rights.  The provisions of this Article shall be deemed to be a contract with each Faculty member who serves as such at any time while this section is in effect and each such Faculty member shall be deemed to be so serving in reliance on the provisions of this Article.  Any amendment or repeal of this Article or adoption of any Bylaw or provision of the Articles of Carnegie Mellon which has the effect of increasing Faculty liability shall operate prospectively only and shall not affect any action taken, or any failure to act, prior to the adoption of any such amendment, repeal, Bylaw or provision.

Without restricting the right of the Board of Trustees of Carnegie Mellon to make revisions in the future, the Board intends to discuss with representatives of the Faculty revisions to this Article before they are implemented.

Section 8.3 Scope of Protected Activities

The scope of the Faculty member’s protected activities shall include:  (a) all teaching, research and administrative functions for which he or she is paid by Carnegie Mellon, and which are part of his or her academic duties; (b) all other recognized activities and responsibilities that are related to the Faculty member’s functions as a representative of the University, but that are not carried out under the school’s direction, and for which the Faculty member is not compensated from any source, other than for reasonable expenses.  This includes the normal amount of outside professional activities that a Faculty member may be expected to undertake as a representative of the University as part of his or her responsibility to add to his or her knowledge and experience and to contribute to the general society.  Activities protected under the provisions of this paragraph shall in particular include the rendering of professional evaluative judgments, for Carnegie Mellon and for other educational institutions (not to include institutions, other than Carnegie Mellon, from which the Faculty member received compensation, other than for reasonable expenses, for services which occasioned the request for the judgment in question); the grading and advising of Carnegie Mellon students; Carnegie Mellon committee service; letters of recommendation for the Carnegie Mellon students; and the review of publications, submissions for publication, educational and research programs of educational institutions, and funding proposals.1

A Faculty member shall not be protected by Carnegie Mellon from financial liability or legal expenses arising from (i) activities that are not related to the Faculty member’s functions as a representative of the University, (ii) activities that are part of an outside activity that goes beyond the standard for the scope of such activity established by the University, or (iii) consulting or other professional activities for which the Faculty member received compensation, other than for reasonable expenses, from other than Carnegie Mellon.  The University’s responsibilities under this Statement of Policy shall not extend to actions for which the Faculty member is dismissed from employment at Carnegie Mellon or to actions taken after a Faculty member’s employment at Carnegie Mellon has ended.

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1Compensation that exceeds reasonable expenses by only a nominal amount for the review of publications, submissions for publication, educational and research programs of educational institutions and funding proposals shall not necessarily invalidate a claim for coverage under this Statement of Policy.

Section 8.4 Required Notice to the University of Suits

A Faculty member shall give notice to Carnegie Mellon’s General Counsel of any actions, suits or proceedings that appear to fall within this Statement of Policy within the earlier of (a) seven days from the date of receipt of notice by the Faculty member of the action, suit or proceeding or (b) two days before the date on which a responsive pleading must be filed or a responsive action taken.  Failure to provide such notice (absent exceptional circumstances) will result in loss of coverage under this Statement of Policy, and will preclude any right to enter a claim under Section 8.5 or to propose a settlement under Section 8.6, for the matter in question.  Faculty members are generally expected to inform Carnegie Mellon’s General Counsel promptly of circumstances that might be expected to lead to such actions, suits or proceedings.

Section 8.5 Presentation of Claims for Counsel and/or Indemnification to General Counsel

Any claim for provision of legal counsel by the University must be delivered in writing to Carnegie Mellon’s General Counsel within seven days of receipt of notice by the Faculty member of the action, suit or proceeding involved unless counsel is needed sooner than seven days, in which event the claim must be delivered as soon as it is known that counsel is needed.  Any claims for indemnification for any judgment, fine or payment in settlement must be delivered in writing to Carnegie Mellon’s General Counsel within the earlier of (a) seven days of entry of the judgment or fine or settlement for which indemnification is sought or (b) two days before the date on which a responsive pleading (including, but not limited to, requests for reconsideration, rehearing or appeal) must be filed or a responsive action taken.  Any claims for indemnification for any other expenses must be delivered in writing to Carnegie Mellon’s General Counsel within the earlier of (a) seven days from the date of receipt by the Faculty member of any statement requesting payment of that expense or (b) two days before the date on which a responsive pleading (including, but not limited to, requests for reconsideration, rehearing or appeal) must be filed or a responsive action taken.  Failure to provide any notice required by this paragraph (absent exceptional circumstances) will result in loss of coverage under this Statement of Policy for the matter in question.

Section 8.6 Settlements

Indemnification shall not be made for any settlement unless the terms of the settlement have been given approval specifically in writing, in advance of the settlement, by the President of Carnegie Mellon.

Section 8.7 Conflict of Interest

(a)     Determination of whether a conflict of interests exists.  If the Faculty member believes that a conflict of interest may exist between the interests of the Faculty member and the University which is likely to have a material effect upon an action, suit or proceeding, covered by this Statement of Policy, to which both Carnegie Mellon and the Faculty member are parties (hereinafter “such a conflict of interest”), he or she may submit a request to Carnegie Mellon’s General Counsel that he or she be provided with counsel separate from the counsel representing the University in that action, suit or proceeding.  Should the General Counsel decline to recognize the claimed conflict of interest, that decision may be appealed to a committee consisting of the Chair of the Board of Trustees, the President of the University, and the Chair of the Faculty Review Committee, or their representatives. The General Counsel is not appointable as such a representative. This committee’s decision is final.

If the Faculty Review committee and/or a Faculty member (by reason of service on the Faculty Review committee) is sued or subpoenaed to give testimony in an action to which the University is also a party, the Faculty Review committee and/or its members shall automatically be deemed to have a conflict of interest for purposes of this section.

(b)    Appointment of an attorney when a conflict of interest is found.  If it is found that a conflict of interest exists, the General Counsel shall provide a list of the names of three attorneys who are not members of any firm representing the University in that action, suit or proceeding and whom Carnegie Mellon is willing to pay to serve as counsel for the Faculty member.  The Faculty member may select one of the attorneys from such list. The faculty member’s consent to such attorneys shall not be withheld without good cause, which shall be expressed in writing to the General Counsel.

If the faculty member so informs the General Counsel that none of the proposed attorneys is acceptable, the faculty member may propose a list of three attorneys to the University, of whom the University may choose one. The University’s consent to such attorneys shall not be withheld without good cause, which shall be expressed in writing to the faculty member. If the University withholds its consent to each of the faculty member’s three choices, the faculty member shall choose three others, and this process shall continue until a mutually satisfactory attorney is found.  The counsel fees paid by the University under this option shall be limited to the rate of the most expensive of the three attorneys proposed by the University.

Finally, if the Faculty member so desires, he or she may retain as counsel an attorney of his or her choice. However, if the Faculty member retains an attorney who was neither selected by nor accepted by Carnegie Mellon, the Faculty member will not be indemnified by the University for expenses and/or costs of the litigation and/or the fees of that attorney regardless of the nature or outcome of that action, suit or proceeding. Faculty may have other rights under Pennsylvania law.

Section 8.8 Right of Faculty Member to Initiate Action; Defenses

(a)    If a written claim under Section 8.5 is not paid in full by Carnegie Mellon within thirty days after such claim has been received by the General Counsel, the Faculty member may at any time thereafter initiate an action to recover the unpaid amount of the claim and, if successful in whole or in part, the Faculty member shall also be entitled to be paid the expense of prosecuting such action.

(b)    The only defenses to an action to recover a claim for indemnification otherwise properly asserted under this Article shall be (i) that the Faculty member’s conduct was such that under applicable law Carnegie Mellon is prohibited from indemnifying the Faculty member for the amount claimed, or (ii) that indemnification would jeopardize Carnegie Mellon’s tax exempt status under Section 501(a) of the Code or result in Carnegie Mellon’s failure to be described in Section 501(c)(3) of the Code, but the burden of proving any such defense shall be on Carnegie Mellon.