Misconduct Disclosure Review

Background

An ongoing concern is that faculty who face investigation or discipline at their home institution may seek to evade it by changing jobs. The Association of American Universities (AAU), of which Berkeley is a member, has set forth principles (link is external) under which member universities are expected to ensure they are not hiring individuals whose prior behavior indicates that they may not adhere to the high ethical standards expected of faculty at an AAU institution, especially in regards to matters of gender-based harassment, sexual harassment, and other sexual misconduct.

Consistent with this reasoning, California state law now sets forth certain requirements for applicants to disclose findings of misconduct, including sexual harassment. Specifically, Senate Bill 791 requires applicants to academic or administrative positions to disclose any final administrative or judicial decisions, as defined, issued within the last seven years, determining that the applicant committed sexual harassment, and permits applicants to disclose if they have filed an appeal with the previous employer, administrative agency, or court, if applicable. Assembly Bill 810 requires applicants to certain positions, including tenure-track/tenured positions, to sign a release form that authorizes the release of information by the applicant’s previous employers to the University of California concerning any substantiated allegations of misconduct. For any applicant who reaches the final stages of the recruitment, the release form must be used to make a reasonable attempt to obtain information from the previous employer concerning any substantiated allegations of misconduct.

Employment Misconduct Disclosure Review for Senate Faculty Positions

For all recruitments of Senate faculty (including those in the professor series, the professor of teaching series, the professor in residence series, and professor of clinical [e.g. optometry] series), the campus will:

  1. Require all applicants to sign, as part of their application for a Senate faculty position, an Authorization of Information Release form regarding past substantiated allegations of misconduct (i.e., conduct related to discrimination, harassment or retaliation in connection with an individual’s protected status or to sexual violence and sexual harassment) at a prior place of employment within the previous seven-year period;
  2. Require all applicants selected as the candidate to whom the hiring unit would like to extend a formal offer for a Senate faculty position to complete an Employment Misconduct Disclosure Questionnaire form indicating if they have been subject to any final administrative or judicial decisions within the last seven years determining that they committed any misconduct (finalists will be permitted to disclose if they have filed an appeal with the previous employer, administrative agency, or court, if applicable); and
  3. Use the release of information form to conduct an Institutional Reference Check, which involves making a reasonable attempt to obtain information from the previous employer concerning any substantiated allegations of misconduct prior to extending a formal offer of employment.

The information above will be used to conduct the Employment Misconduct Disclosure Review. Any disclosures regarding substantiated allegations of misconduct that a candidate makes on the Employment Misconduct Disclosure Questionnaire form will be considered by the Vice Provost for the Faculty in consultation with other central campus offices as appropriate, in conjunction with any information received from the previous employer, prior to an offer being finalized. The chair of the Committee on Budget & Interdepartmental Relations will be consulted during this process. 

Frequently Asked Questions (FAQs)

Misconduct Disclosure Review - FAQs

What is California SB 791 and AB 810?

Senate Bill (SB) 791 and Assembly Bill (AB) 810 are two bills that were signed into state law that add and amend sections 92612.1 and 92612.2 of the California Education Code, effective January 1, 2025 (reference California Senate Bill (SB) 791, Postsecondary education: academic and administrative employees: disclosure of sexual harassment; and California Assembly Bill (AB) 810, Postsecondary education: hiring practices: academic, athletic, and administrative positions).

California Education Code Sections 92612.1 and 92612.2 include the following requirements: 

  • Applicants who are identified as a finalist for an academic or administrative position to disclose any final administrative or judicial decisions issued within the last seven years related to misconduct, including sexual harassment, as defined in the statute. 

  • Permit finalists to disclose if they have filed an appeal with the previous employer, administrative agency, or court, if applicable.

  • In the event the applicant reaches the final stages of the application process, the applicants for tenure-track/tenured appointments will be required to sign a release form that authorizes the release of information by the applicant’s previous employers to the UC location concerning any substantiated allegations of misconduct. This authorization will permit the UC location to evaluate the released information with respect to the criteria for a potential appointment.

  • The law requires the UC location to use the signed release form from applicants for tenure-track/tenured appointments to make a reasonable attempt to obtain information from the previous employer concerning any substantiated allegations of misconduct.

How do these new laws impact the University of California?

In response, the University will implement these bills by:

  1. Requiring all proposed hires to disclose any final administrative or judicial decisions issued within the last seven years from the date of submission of an employment application determining that the proposed hire committed misconduct, including sexual harassment.

    1. Proposed hires will also be permitted to disclose if they have filed an appeal with the previous employer, administrative agency, or court, if applicable.

  2. Requiring all proposed hires in the Professor series or Professor of Teaching series to sign a release form that authorizes the release of information by the proposed hire’s previous employers to the UC location concerning any substantiated allegations of misconduct in order to permit the UC location to evaluate the released information with respect to the criteria for a potential job placement. The release form is required for all employees if the UC location wishes to follow-up with a prior employer.

  3. Requiring all locations to use the signed release form to make a reasonable attempt to obtain information from the previous employer concerning any substantiated allegations of misconduct for all proposed hires in the Professor series or Professor of Teaching series regardless of the proposed hire’s responses in the misconduct disclosure questionnaire.

When is this effective?

The University of California implemented the changes to California Education Code Sections 92612.1 and 92612.2 effective January 1, 2025. This means all academic recruitments opened on January 1, 2025, and thereafter, are subject to the misconduct disclosure requirements, and authorization release and prior employer follow-up where applicable. 

Not all academic recruitments are processed within AP Recruit, such as search waivers and exemptions (e.g., volunteers). In those situations, effective January 1, 2025, all proposed hires are subject to the misconduct disclosure requirements, and authorization release and prior employer follow-up where applicable.

Why do we require this misconduct disclosure from all proposed hires?

Requiring this misconduct disclosure ensures a safe and respectful environment for all students, faculty, other academic appointees, and staff. It helps the institution identify individuals with a history of sexual harassment, thereby protecting the community and maintaining a professional and safe working and learning environment.

Who needs to comply with this requirement?

Proposed hires for academic or administrative positions at the University of California must comply with this requirement. This includes positions at all levels, ranks, and steps for all academic series appointees. 

  1. Is every applicant required to complete a substantiated misconduct disclosure questionnaire?

    Only those proposed hires the University has determined meet the minimum employment qualifications may be required to complete a misconduct disclosure. At a minimum, all proposed hires must complete the misconduct disclosure. 

  2. Is every applicant required to complete a release form?

    The release form is required for all Senate faculty positions. A release form may be required for other academic recruitments.

What types of decisions need to be disclosed?

Proposed hires must disclose any violation of the policies or laws governing conduct at a candidate’s previous place of employment, including, but not limited to, violations of policies or laws prohibiting sexual harassment, sexual assault, or other forms of harassment or discrimination as defined by the previous employer. This includes decisions from educational institutions, employers, courts, or other relevant bodies.

How recent must these decisions be to require misconduct disclosure?

Only decisions issued within the last seven years from the date of application submission need to be disclosed.

How does the candidate submit their misconduct disclosure? Who will see it?

The misconduct disclosure submission process will depend on the academic title into which the candidate is being proposed for hire. Candidates for appointment to Senate academic titles (primarily candidates for appointment to positions in the professor or professor of teaching series) will be asked to submit an Employment Misconduct Disclosure Questionnaire through Docusign. Candidates for appointment to other academic titles will be asked to submit the Employment Misconduct Disclosure Questionnaire through our outside vendor, Truescreen. The form will be reviewed by central campus offices as appropriate. Records of disclosure will be maintained centrally and will be treated as confidential.

Where will the completed misconduct disclosures be stored and how long will they remain in our records?

In order to protect a candidate’s privacy, the misconduct disclosure form and any information pertaining to prior misconduct must be treated as confidential and retained per local procedures.

If the proposed hire is hired by the University, the misconduct disclosure form, and any information pertaining to prior misconduct received from a prior employer, shall be retained in a file separate from the personnel file but retained in accordance with the disposition of records for personnel files. 

If the proposed hire is not hired by the University, the misconduct disclosure form, and any information pertaining to prior misconduct received from a prior employer, shall be retained in a file separate from the recruitment records but retained in accordance with the disposition of records for recruitment files.  

What happens if a candidate fails to disclose such decisions?

Failure to disclose required information can result in disqualification from the recruitment or appointment process, or termination of employment if the omission is discovered after hiring. It is crucial for maintaining integrity and trust in the hiring process.

How will the disclosed information be used?

The disclosed information will be reviewed as part of the overall assessment of the proposed hire's suitability for the position. It will be handled with confidentiality and used solely for the purpose of evaluating the proposed hire's qualifications and ensuring the safety of the academic community.

Who is involved in the decision-making process if a proposed hire discloses prior misconduct?

Findings will be reviewed by relevant staff in the Academic Personnel Office and the Vice Provost for the Faculty, in consultation with other central campus offices as appropriate.

A. Will disclosure of prior misconduct automatically disqualify a proposed hire?

Not necessarily. The disclosed information will be reviewed as part of the overall assessment of the proposed hire's suitability for the position.

What steps does the University take to ensure fairness in this process?

The University is committed to fair and equitable hiring practices. Each misconduct disclosure will be reviewed in context, considering the severity of the incident, the proposed hire's actions since the decision, and other relevant factors. The goal is to balance transparency and accountability with fairness and rehabilitation.

Where can applicants find more information or seek clarification about this requirement?

Proposed hires should reach out to their hiring unit with questions not addressed in this FAQ or at https://apo.berkeley.edu/misconduct-disclosure-review.