2021 TMCC Annual Security Report

f. If a party or witness does not submit to cross-examination at the live hearing, to the extent permitted by law and not otherwise subject to exclusion under this policy, the hearing officer may consider those statements of a person who was not present at the hearing, or a person who was present at the hearing but who was not subject to cross examination if the statement is deemed reliable and relevant by the hearing officer. This includes, but is not limited to, opinions and statements in police reports or other official reports, medical records, court records and filings, investigation notes of interviews, emails, written statements, affidavits, text messages, emails, social media postings, and the like. The hearing officer(s) cannot draw an inference about the determination regarding responsibility based solely on a party's or witness's absence from the live hearing or refusal to answer cross-examination or other questions. g. Institutions must create an audio or audiovisual recording, or transcript, of any live hearing and make it available to the parties for inspection and review. h. Nothing in this Subsection shall be construed to impair rights under the U.S. Constitution, including but not limited to the Fifth Amendment, or privileges recognized by statute or common law. 10. Determination Regarding Responsibility. a. The decision-maker, or hearing officer(s) as appropriate, must issue a written determination regarding responsibility under the preponderance of the evidence standard within 14 calendar days of the live hearing. b. The written determination must include: i. Identification of the allegations potentially constituting sexual harassment as defined in Subsection 2; ii. A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held; iii. Findings of fact supporting the determination; iv. Conclusions regarding the application of the institution’s code of conduct to the facts; v. A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the institution imposes on the respondent, and whether remedies designed to restore or preserve equal access to the institution’s education program or activity will be provided by the institution to the complainant; and vi. The institution’s procedures and permissible bases for the complainant and respondent to appeal. c. The institution must provide the written determination regarding responsibility to the parties simultaneously. The written determination becomes final either on the date that the institution provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely. 42

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