Part D: Appendices

• Advisor: a person chosen by a party or appointed by the institution to accompany the party to meetings related to a resolution process, to advise the party on that process, and to conduct questioning for the party at the hearing, if any.
• Appeal Decision-maker: the person or panel who accepts or rejects a submitted appeal request, determines whether an error occurred that substantially affected the investigation or original determination, and directs corrective action, accordingly.
• Complainant: an individual who is the victim of conduct that could constitute discrimination, harassment, or misconduct as covered by this Policy.
• Confidential Resource: an employee who is not a Mandated Reporter of notice of discrimination, harassment, and/or retaliation (irrespective of Clery Act Campus Security Authority status).
• Day: means a business day when the College is in normal operation.
• Decision-maker: the person or panel who hears evidence, determines relevance, and makes the Final Determination of whether this Policy has been violated and/or assigns sanctions.
• Directly Related Evidence: evidence connected to the complaint, but which is neither inculpatory (tending to prove a violation) nor exculpatory (tending to disprove a violation) and cannot be relied upon by the Decision-maker(s). Compared to Relevant Evidence, below.
• Education Program orActivity: locations, events, or circumstances where Saint Mary’s College exercises substantial control over both the Respondent and the context in which the discrimination, harassment, misconduct, and/or retaliation occurs and includes any building owned or controlled by a student organization that is officially recognized by the College.
• Final Determination: a conclusion by the standard of proof that the alleged conduct did or did not violate policy.
• Finding: a conclusion by the standard of proof that the conduct did or did not occur as alleged (as in a “finding of fact”).
• Formal Complaint: a document submitted and signed by a Complainant or signed by the Title IX Coordinator alleging a Respondent engaged in discrimination, harassment, retaliation, or misconduct as covered by this Policy and requesting that the College investigate the allegation(s).
• Formal Resolution Process: a method of formal resolution designated by the College to address conduct that falls within this Policy, and which complies with the requirements of the Title IX regulations (34 C.F.R. § 106.45, 2020) and the Violence Against Women Act § 304 (“VAWA”).
• Informal Resolution: a complaint resolution agreed to by the parties and approved by the Title IX Coordinator, or designee, that occurs prior to a formal Final Determination being reached.
• Investigator: the person(s) authorized by Saint Mary’s College of California to gather facts about an alleged violation of this Policy, assess relevance of evidence, synthesize the evidence, and compile this information into an investigation report of Relevant Evidence and a file of Directly Related Evidence.
• Mandated Reporter: a Saint Mary’s College employee who is obligated by policy to share knowledge, notice, and/or reports of sex-based discrimination and harassment, sexual misconduct, and/or retaliation with the Title IX Support and Compliance Office.¹
• Notice: means an employee, student, or third party informs the Title IX Coordinator or other Official with Authority of an alleged occurrence of discriminatory, harassing, and/or retaliatory conduct.
• Official with Authority (OWA): a college employee who has responsibility to implement corrective measures for discrimination, harassment, misconduct, and/or retaliation on behalf of the College.
• Parties: Complainant(s) and Respondent(s), collectively.
• Postsecondary Institution: a campus of the University of California, the California State University, or the California Community Colleges, a private postsecondary educational institution, or an independent institution of higher education that receives state financial assistance.
• Recipient: a postsecondary education program that receives federal funding.
• Relevant Evidence: evidence that tends to prove (inculpatory) or disprove (exculpatory) an issue in the complaint.
• Remedies: post-Final Determination actions directed to the Complainant and/or the community as mechanisms to address safety, prevent recurrence, and restore access to the College’s education program.
• Resolution Process Pool: includes any Investigators, Decision-makers, Appeal Decision-makers, Informal Resolution support staff, and College-appointed Advisors who may perform any or all these roles (though not at the same time with respect to the same complaint).
• Respondent: an individual who has been reported to be alleged of conduct that constitutes discrimination, harassment, retaliation, or misconduct under this Policy.
• Responsible Employee:² an employee who has the authority to take action to redress sexual harassment or provide supportive measures to students, or who has the duty to report sexual harassment to an appropriate school official who has that authority.
• Resolution: the result of an Informal Resolution or Formal Resolution Process.
• Sanction: a consequence imposed on a Respondent who is found to have violated policy.
• Sexual Harassment: an umbrella category including the offenses of sexual harassment, sexual assault, dating violence, domestic violence, and stalking.
• Student: any individual who has accepted an offer of admission, or who is registered or enrolled for credit or non-credit bearing coursework, and who maintains an ongoing educational relationship with the College.
• Title IX Coordinator: an official designated by Saint Mary’s College to ensure compliance with Title IX and the College’s Title IX-related programs. References to the Coordinator throughout this policy may also encompass a designee of the coordinator for specific tasks.
• Title IX Team: refers to the Title IX Coordinator, liaisons, and members of the Resolution Process Pool, collectively.
   

1. The right to an equitable investigation and resolution of all credible allegations of prohibited discrimination or harassment (if known) made in good faith to the College officials.
2. The right to timely written notice of all alleged violations, including the identity of the parties involved (if known), the precise misconduct being alleged, the date and location of the alleged misconduct (if known), the implicated College policies and procedures, and possible sanctions.
3. The right to timely written notice of any material adjustments to the allegations and any attendance adjustments needed to clarify potentially implicated policy violations.
4. The right to be fully informed of relevant College policies and procedures as well as the nature and extent of all alleged violations.
5. The right to be informed in advance of any public release of information regarding the allegation(s) or underlying incident(s), whenever possible.
6. The right to not have any personally identifiable information released to the public, without consent provided, except to the extent permitted by law.
7. The right to be treated with respect by college officials, and any persons serving in a role in the resolution process.
8. The right to have the College policies and procedures followed without material deviation.
9. The right to not be pressured to mediate or otherwise informally resolve any reported misconduct involving violence, including sexual violence.
10. The right to not be discouraged by the College from reporting sexual misconduct or discrimination to both on-campus and off-campus authorities.
11. The right to be informed by the College of options to notify proper law enforcement authorities and/or other college officials.
12. The right to have allegations of violations of this Policy responded to promptly by the College. 
13. The right to be informed of available resources, such as counseling, advocacy, health care, legal, student financial aid, visa and immigration assistance, or other services, both on-campus and in the community.
14. The right to request a college-implemented No Contact Directive (or a no-trespass order against a nonaffiliated third party) when a person has engaged in or threatens to engage in stalking, threatening, harassing, or other improper conduct that presents a danger to the welfare of the party or others.³
15. The right to privacy.
16. The right to be informed of available supportive measures in changing academic, living, and/or working situations after an alleged incident of discrimination, harassment, and/or retaliation, if such changes are reasonably available. No formal report or investigation, either campus or criminal, needs to occur before this option is available. The right to have the College maintain such actions for as long as necessary and for supportive measures to remain private, provided privacy does not impair the College’s ability to provide the accommodations or protective measures.
17. The right to receive sufficiently advanced, written notice of any meeting or interview involving the other party, when possible.
18. The right to ask the Investigator(s) and Decision-maker(s) to identify and question relevant witnesses, including expert witnesses.
19. The right to not have irrelevant prior sexual history or character admitted as evidence.
20. The right to know the relevant and directly related evidence obtained, and to respond to that evidence.
21. A right to a fair opportunity for the parties to provide the Investigator(s) with their account of the alleged misconduct, and have that account be on the record.
22. The right to receive a copy of the investigation report, including all factual analysis performed, and all relevant and directly related evidence available and used to produce the investigation report, subject to the privacy limitations imposed by state and federal law, prior to the hearing, and the right to have at least ten (10) days to review the report prior to the hearing.
23. The right to respond to the investigation report, including comments, providing any additional relevance evidence, and identifying any new witnesses after having the opportunity to review the investigation report, and to have those responses on the record.
24. The right to be informed of all the names of all witnesses whose information will be used to make a finding, in advance of the hearing and that finding, where relevant.
25. The right to regular updates on the status of the investigation and/or resolution.
26. The right to have reports of alleged Policy violations addressed by persons who have received relevant and annual training.
27. The right to meetings, interviews, and/or hearings that are closed to the public.
28. The right to petition that any College representative in the process be recused on the basis of a disqualifying bias or conflict of interest.
29. The right to have an Advisor of their choice, or to have an Advisor appointed by the College to accompany and assist the party in all meetings and/or interviews associated with the investigation and resolution process.
30. The right to have an Advisor conduct cross-examination of the other party and witnesses at a hearing, if any.
31. The right to the use of the preponderance of the evidence standard to make a finding after an objective evaluation of all relevant evidence.
32. The right to be present via remote technology, during all testimony given and evidence presented during any formal resolution hearing.
33. The right to submit an impact and/or mitigation statement to be read by the Panel following a determination of responsibility of any allegation, but prior to sanctioning.
34. The right to be promptly informed in a written notice of the finding(s) and sanction(s), if any, and a detailed rationale, delivered simultaneously (without undue delay) to the parties.
35. The right to be informed in writing of when a decision by the College is considered final and any changes to the sanctions that occur before the decision if finalized.
36. The right to be informed of the opportunity to appeal the finding(s) of the resolution process, and the procedures for doing so in accordance with the standards for appeal established by the College in this Policy.

The right to a fundamentally fair resolution as defined in these procedures.

Right to an Advisor

Individuals bringing forward allegations (“Complainants”), and individuals responding to allegations (“Respondents”) may select any person to be an Advisor⁴ of their choice. Parties also have a right to choose to not have an Advisor in the initial stages of the resolution process, before the hearing.

The parties are expected to inform the Title IX Coordinator of the identity of their Advisor at least one (1) business day before the date of the scheduled interview or meeting (or as soon as possible if a more expeditious meeting is necessary or desired). A party may elect to change Advisors during the process and is not obligated to use the same Advisor throughout. The parties are expected to provide timely notice to the Title IX Coordinator if they change Advisors at any time. A new Release of Information for each Advisor will be required before the Title IX Coordinator, or any person involved in the resolution process, will communicate with someone identified as an Advisor. If Advisors are changes throughout the process, the Release of Information for that Advisor will null any and all prior releases to formerly identified Advisors but may be reinstituted if a change back occurs.

Parties are expected to inform the Title IX Coordinator of the identity of their hearing Advisor will be, at least five (5) business days before the hearing. 

The College cannot guarantee equal Advisory rights, meaning that is one party selects an Advisor who is an attorney, but the other party does not or cannot afford an attorney, the College is not obligated to provide an attorney.

Support Person(s)

The parties are encouraged to seek guidance from other individuals of their choosing for continued physical, mental, and emotional support throughout the process.

A support person, or advocate, who is not designated as the party’s “Advisor” may not attend interviews or be present at the hearing.

Who Can Serve as an Advisor

The Advisor may be a friend, mentor, family member, attorney, or any other individuals a party chooses to advise, support, and consult with them through a resolution process as long as the Advisor is eligible and available.⁵

Parties may choose an Advisor from inside or outside of the College community. 

Advisors are subject to the same College policies and administrative rules, whether they are attorneys or not.

Choosing an Advisor who is also a witness in the process creates potential for bias and conflict of interest. A party who chooses an Advisor who is also a witness can anticipate that issues of potential bias will be explored by the Decision-maker(s).

If the parties choose an Advisor from outside the pool of those identified by the College, the Advisor may not have been trained by the College and may not be familiar with Saint Mary’s College policies and procedures.

College Process Advisor

The Title IX Coordinator will offer to assign an Advisor for any party if the party so chooses. If the parties choose an Advisor from the pool available, the Advisor will be trained and familiar with the College’s resolution processes. 

College Process Advisors can provide clarification about Saint Mary’s College policies and procedures, and may attend all meetings, investigation interviews, and resolution proceedings, at which their advisee is entitled to be present, and review documents and materials from the investigation, the draft and final investigation report, and any relevant documents related to the outcome of the resolution process. A College Process Advisor cannot provide legal advice.

Expectation of an Advisor

Advisors should assist a party with preparing for any meeting or interview that is associated with the investigation, hearing, and/or appeal process, including accompanying the party to investigation interviews, pre-hearing meetings, and the hearing. Advisors should help their advisee prepare for each meeting and are expected to advise ethically, with integrity, and in good faith.

The College generally expects an Advisor to adjust their schedule to allow them to attend College meetings/interviews/hearings when planned, but the College may change schedules meetings/interviews/hearings to accommodate an Advisor’s inability to attend, if doing so does not cause an unreasonable delay.

The College may also make reasonable provisions to allow an Advisor who cannot be present in person to attend a meeting/interview/hearing by telephone, video conferencing, or other similar technologies as may be convenient and available.

All Advisors are subject to the same College policies and procedures, whether they are attorneys or not. The College may seek to restrict the role of any Advisor who does not respect the sensitive nature of the process or who fails to abide by the College’s privacy expectations.

The parties are expected to respond to questions on their own behalf throughout the investigation phase of the resolution process. Although the Advisor generally may not speak on behalf of their advisee, the Advisor may consult with their advisee, either privately as need, or quietly passing notes during any resolution process meeting or interview, as long as they do not disrupt the process. For longer or more involved discussions, the parties should ask for a break to allow for private consultation.

Advisors who act outside of their role or who impede or obstruct proceedings, who disseminate information to third party individuals or organizations, who represent themselves to others who are engaged in our process as having any role other than an Advisor in the process may be excluded from investigation and resolution proceedings.

Any Advisor who oversteps their role as defined by this Policy will be warned once and only once. If the Advisor continues to disrupt or otherwise fails to respect the limits of the Advisor role, the Advisor will be asked to leave the meeting. When an Advisor is removed from a meeting, that meeting will typically continue without the Advisor present. Subsequently, the Title IX Coordinator will determine whether the Advisor may be reinstated or replaced by a different Advisor. 

Advisor Role in Meetings and Interviews

The parties may be accompanied by their Advisor in all meetings and interviews at which the party is entitled to be present, including intake and interviews. Advisors should help their advisee prepare for each meeting and are expected to advise ethically, with integrity, and in good faith.

Advisors may request to meet with the administrative officials conducting interviews/meetings in advance of these interviews and meetings to clarify and understand their role and the College’s policies and procedures.

Advisor/College-Appointed Advisor Role in Hearings

Under the Title IX Regulations, a form of indirect questioning is required during the hearing but must be conducted by the parties’ Advisors. The parties are not permitted to directly question each other or any witnesses. 

If a party does not have an Advisor for a hearing, the College will appoint a trained Advisor for the limited purpose of conducting any questioning of the parties and witnesses. A party may reject this appointment and choose their own Advisor, but they may not proceed without an Advisor if they wish to ask questions of the other party, Investigator(s), or witnesses.

The Advisor may not provide testimony and may not speak on behalf of the advisee during cross-examination.

If the party’s Advisor will not conduct cross-examination, the party may identify an alternative Advisor, or the College will appoint an Advisor solely for the purpose of cross-examination, regardless of the participation or non-participation of the advised party in the hearing itself.

Sharing Information with an Advisor

The College expects that the parties may wish to have the College share documentation and evidence related to the allegations with their Advisor. The College provides a release of information form authorizing the College to share such information directly with a party’s Advisor. The parties must complete and submit this form to the Title IX Coordinator before the College is able to share records with an Advisor. This form is available from the Title IX Coordinator.

Advisors are expected to maintain the privacy of the records shared with them. These records may not be shared with third parties, disclosed publicly, or used for purposes not explicitly authorized by the College. The College may seek to restrict the role of any Advisor who does not respect the sensitive nature of the process or who fails to abide by the College’s privacy expectations.

The College’s communication protocol with the Complainant or Respondent does not permit going through a representative or other intermediary because of the importance of direct communication with the Complainant or Respondent during the investigation and resolution process as described in this Policy. The College will not approve requests that all communication be made through an attorney Advisor, however, will make every effort to include an Advisor as a “cc” in communications related to the resolution process, if so desired by the party.

Assistance in Securing an External Advisor

Parties can find legal assistance through a number of community resources listed below. A party can choose to hire independent legal counsel to serve as an Advisor. In that event, the individual is solely responsible for any fees related to the representation.

Bay Area Legal Aid may be a resource used to source information and referrals for legal representation.

• Website: https://baylegal.org/get-help/find-an-office/contra-costa-county/
• Phone: (510) 233-6846

For representation, Respondents may wish to contact organizations such as: 

• FACE (http://www.facecampusequality.org)
• SAVE (http://www.saveservices.org)

For representation, Complainants may wish to contact organizations such as: 

• The Victim Rights Law Center (http://www.victimrights.org),
• The National Center for Victims of Crime (http://www.victimsofcrime.org), which maintains the Crime Victim's Bar Association,
• The Times Up Legal Defense Fund (https://nwlc.org/times-up-legal-defense-fund/)

In some cases, the Title IX Coordinator may determine that a threat assessment or violence risk assessment (hereafter “VRA”) should occur, with consultation of Human Resources for situations involving an employee, or Dean of Students for those involving a student.

Threat assessment is the process by evaluating the actionability of violence by an individual against another person or group following the issuance of a direct or conditional threat. A VRA is a broader term used to assess any potential violence or danger, regardless of the presence of a vague, conditions, or direct threat.

The VRA will determine whether the reported information and any other available information provides a rational basis for concluding that there is a compelling risk to health and/or safety that requires the College to pursue formal action to protect the community. A compelling risk to health and/or safety may result from evidence of patterns of misconduct, predatory conduct, threats, abuse of minors, use of weapons, and/or violence.

The outcome of the VRA will be based upon a review of the totality of the known circumstances, and will be guided by a consideration of any of the following factors:

• Whether the Respondent has threatened to commit violence or any threat to physical health/safety.
• Whether aggravating circumstances or signs of violence, threats of violence, or other predatory behavior are present.
• Whether there is evidence of violence including, but not limited to, hitting, punching, slapping, kicking, restraining, strangling, and/or brandishing or using a weapon.
• Whether the report reveals a pattern or potential conduct or to assess/identify grooming behaviors.
• Whether the Title IX Coordinator should pursue/sign a Formal Complaint absent a willing/able Complainant.
• Whether the alleged conduct involved physical violence.
• Whether the Complainant is (or was at the time of the prohibited conduct) a minor (under 18 years of age).
• Whether to permit a voluntary withdrawal of the Respondent.
• Whether it is reasonable to try and resolve a complaint through informal resolution, and what modality might be most appropriate.
• Whether a Clery Act Timely Warning, and/or Trespass Order is needed.

A VRA is not an evaluation for an involuntary behavioral health hospitalization (e.g., 5150 in California) nor is it a psychological or mental health assessment. A VRA assesses the risk of actionable violence, often with a focus on targeted/predatory escalations, and is supported by research from the fields of law enforcement, criminology, human resources, and psychology.

Where a VRA is required by the Title IX Coordinator, a Respondent refusing to cooperate may result in an allegation of failure to comply within the appropriate student or employee conduct process.

In all cases, the initial report, the assessment, and the determination of the Executive Director of Campus Safety and Transportation will be documented and retained by the College in accordance with institutional record-keeping policies.

Following the completion of the VRA, the Executive Director of Campus Safety and Transportation, Title IX Coordinator, and other appropriate campus officials will reconvene as necessary to continue to evaluate whether any new or additional information received triggers any further obligation(s) under the Clery Act or with respect to any child protective agency and will direct the Title IX Coordinator to take such further actions, as necessary.