55 NSU STUDENT HANDBOOK 2023-24 4.4. Institutions shall provide the parties with the same opportunities to have others present during any grievance proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney, and not limit the choice or presence of advisor for either the complainant or respondent in any meeting or grievance proceeding; however, the institution may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties. 4.5. Institutionsshallprovide,toapartywhoseparticipationisinvitedorexpected,written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, at least 5 working days in advance. 4.6. An institution shall ensure both parties and their advisors have an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the institution does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation. Prior to completion of the investigative report, the institution must send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy, and the parties must have at least 10 days to submit a written response, which the investigator will consider prior to completion of the investigative report. The institution must make all such evidence subject to the parties’ inspection and review available at any hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of crossexamination. 4.7. Institutions shall create an investigative report that fairly summarizes relevant evidence and, at least 10 working days prior to a hearing (if a hearing is required under this section or otherwise provided) or other time of determination regarding responsibility, send to each party and the party’s advisor, if any, the investigative report in an electronic format or a hard copy, for their review and written response. 5. Hearings 5.1. Institutions shall provide for a live hearing conducted before a hearing examiner using the contested case proceedings set forth in SDCL chapter 1-26. However, the use of the procedures afforded to contested case proceedings under SDCL chapter 1-26 is not determinative as to the matters status as a contested case under South Dakota law. The individual facts and circumstances shall determine whether or not the matter meets the legal threshold for a contested case, regardless of the process afforded herein. Live hearings may be conducted with all parties physically present in the same geographic location or, at the institution’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other. The institution shall create an audio or audiovisual recording, or transcript, of any live hearing and make it available to the parties for inspection and review. 5.2. Institutions shall provide notice to both parties at least 15 days in advance of the live hearing, which notice shall include: 5.2.1. A statement of the time, place, and nature of the hearing; 5.2.2. A statement regarding the legal authority and jurisdiction under which the hearing is to be held; 5.2.3. A reference to the particular policy, rules or laws involved;
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