Part II By-Laws of the North Dakota High School Activities Association

Article VI: Due Process Procedure¶

The following Due Process Procedure shall govern the investigation into alleged or contested violations of the Constitution, By-Laws, or interpretations of the North Dakota High School Activities Association by a member school (party) (see Member Schools Complaint and Appeals Flow Chart, attached hereto at page 49 and incorporated by reference), or of appeals made pursuant to Part Two, Article XIV, Section IXb ("hardships") (see Member Schools Hardship Exception Procedure and Appeals Flow Chart, attached hereto at page 37 and incorporated by reference) or Section X ("eight semester rule") (see Member Schools Extra Semesters(s) Procedure and Appeals Flow Chart, attached hereto at page 38 and incorporated by reference) of the By-Laws. (Oct. 2011)

SECTION I:¶

When admissions of violations occur, penalties may be assessed without regard to these appeal procedures, subject to the right to appeal the penalty assessed.

SECTION II:¶

Inasmuch as a protest is not allowed by the NDHSAA when it is based on judgment decisions of officials or misinterpretation or misapplication of playing rules, no investigation which affects the outcome of a contest or the disqualification of players, coaches and other bench personnel shall be conducted into the decisions of contest officials.

SECTION III:¶

There is no appeal from a decision of the NDHSAA Executive Secretary concerning issues relating to the conduct of or participation by schools or students in the NDHSAA tournament/post-season activity for that sport.

SECTION IV: As used herein unless the context otherwise requires:¶

• Party may mean any of the following or a combination thereof:
  1. Any public or non-public school of North Dakota which is a member of the North Dakota High School Activities Association;
  2. Any official designated a representative of a public or non-public school of North Dakota which is a member of the North Dakota High School Activities Association;
  3. Any official, referee, judge or starter who is registered by the North Dakota High School Activities Association. (Disputes regarding officials' conduct and administration of playing rules and contests are not subject to these procedures.)
• When these rules require the "giving of notice", the notice shall be in writing and shall be mailed, by first class United States mail, to the last known address of the party, or delivered personally.
• Executive Secretary shall mean the duly appointed and serving Executive Secretary-Treasurer of the North Dakota High School Activities Association.
• The designate of the Executive Secretary shall mean a person duly appointed by the Executive Secretary. Persons eligible to be a designate shall include employees of the North Dakota High School Activities Association, its legal counsel, and all administrators of public or non-public North Dakota Schools which are members of the North Dakota High School Activities Association.
• Executive Board shall mean the President, Vice President and one other member of the Board, appointed by the President on a case-by-case basis. If a member of the Executive Board has a conflict of interest, the President (or the Vice President, if the President has a conflict), shall appoint a replacement.
• Violation shall mean a breach of the rules and standards set forth in the Constitution, By-Laws, or interpretations promulgated by the North Dakota High School Activities Association.

SECTION V:¶

The Executive Secretary or his or her designate may ask the party about whom allegations have been made to conduct an inquiry and report its findings, conclusions and actions to the Executive Secretary. If the party fails to respond or contests the allegations, the Executive Secretary or other designate shall conduct further investigation. Failure of a school to provide the Executive Secretary or designate the documentation deemed necessary by the Executive Secretary to perform a complete investigation under the NDHSAA Constitution Article V, Section IV (g) will result in an immediate requirement that the school show cause before the Executive Board why it is not in violation of the terms of its Membership Application.

SECTION VI:¶

The Executive Secretary or designate shall give notice to the party being investigated within a reasonable time.

SECTION VII:¶

If a designate conducts the investigation, the designate shall submit a written report to the Executive Secretary which shall contain:

• Findings of fact; and
• An opinion as to whether a violation has been committed by the party. This written report shall be submitted within a reasonable time after the appointment of the designate. The written report will be in no way binding on the Executive Secretary or the Board of Directors.

SECTION VIII:¶

The Executive Secretary, after receiving the written report from his or her designate or after completing the investigation personally, shall prepare a preliminary determination which shall contain:

• A statement of the alleged violation;
• Findings of fact;
• A determination of whether a violation has been committed by the party, and;
• If it is determined that a violation has been committed by theparty, a request to the Executive Board for a penalty to be imposed.
• It is permissible for the Executive Secretary or designates to provide an expanded infractions report on each case appealed.

SECTION IX:¶

If the Executive Secretary determines a violation has occurred, the Executive Board shall set the penalty and the Executive Secretary shall provide written notice of the determination to the party charged with the violation, including a statement of the following right to appeal:

• If the violation has not been admitted, the Executive Secretary's determination that a violation has occurred may be appealed to the Executive Board (see Section X);
• If the violation has not been admitted, the Executive Board's written decision to the party (see Section VIII) may be appealed to the Board of Directors with reference to the determination of the violation or the penalty imposed or both (see Section XIV); or
• If the violation has been admitted, the Executive Board's determination as to the penalty may be appealed directly to the Board of Directors; (see Section XIV).

SECTION X:¶

A written notice of appeal by a party to the Executive Board must be postmarked or received by the Executive Secretary within fourteen (14) days after notice of the decision is postmarked or personally delivered. The notice of appeal must be addressed to the Executive Secretary.

SECTION XI:¶

After receiving a timely and valid notice of appeal, the Executive Secretary or designate shall give notice to the party of the time and place where the appeal will be considered. The appeal shall be at the next meeting of the Executive Board, or if circumstances require, an earlier meeting may be held.

SECTION XII:¶

All appeals to the Executive Board shall be in writing and contain all facts pertinent to the case including sufficient data to make it possible to reach a decision without further investigation. An appeal to the Executive Board is not de novo. An appearance may be allowed, at the sole discretion of the Executive Board, only if requested in the notice of appeal.

SECTION XIII:¶

The Executive Board shall render a written decision to the party within a reasonable time after the meeting and shall publish an account of the appeal in Association meeting minutes setting forth:

• Findings of fact;
• A determination of whether a violation has been committed by the party; and
• The penalty imposed if a violation is found to have occurred.

SECTION XIV:¶

A written notice of appeal by a party to the Board of Directors must be postmarked or received by the Executive Secretary within thirty (30) days after notice of the Executive Board's decision is postmarked or personally delivered. The notice of appeal must be addressed to the Executive Secretary.

SECTION XV:¶

After receiving a timely and valid notice of appeal, the Executive Secretary or designate shall give notice to the party of the time and place where the appeal will be considered. The appeal shall be at the next regularly scheduled meeting of the Board of Directors.

SECTION XVI:¶

All appeals to the Board of Directors shall be submitted in writing and contain all facts pertinent to the case, including sufficient data to make it possible to reach a decision without further investigation. An appeal to the Board of Directors will include a hearing, only if requested in the notice of appeal to the Board. Parties are entitled to be represented by legal counsel at their own expense. A hearing, if requested, will be conducted as follows:

• The Chairperson of the Association may act as the hearing officer or may appoint a hearing officer to preside over the hearing.
• At the beginning of the hearing, the hearing officer will identify and clarify the factual matters agreed upon by the parties and the issues which are contested.
• Written copies of the decision of the Executive Secretary and the Executive Board will be entered into evidence.
• The Executive Secretary may provide testimony, subject to cross-examination by the opposing party and questioning from the Board.
• The appealing party may present additional evidence, including testimony of witnesses, subject to cross-examination by the opposing party and questioning from the Board.
• Following completion of all testimony, the parties will each be given an opportunity to make a closing statement, with the Executive Secretary making the first such statement.
• After receiving closing statements, the hearing officer shall declare the hearing closed and discussion thereafter shall be limited to members of the Board.

SECTION XVII:¶

The Board of Directors shall render a written decision to the party within a reasonable time after its meeting and shall publish an account of the appeal in Association meeting minutes setting forth:

• Findings of fact;
• A determination of whether a violation has been committed by the party; and
• The penalty imposed if a violation is found to have occurred. The Board of Directors may modify (increase or decrease) or eliminate the penalty [Constitution, Part I, Article V, Section IV (f) and Part II, Article V].