The University of Dayton is a federal contractor and meets the criteria to be encompassed by affirmative action requirements, which, broadly speaking, are a set of policies for the benefit of an underrepresented group in areas of education, employment, and business.  As a covered entity, the University must affirmatively act to recruit and hire women, traditionally under-represented minority groups, persons with disabilities and veterans.  Affirmative action includes training programs, outreach efforts, and other affirmative/positive steps.  For more information, please reference the University's Affirmative Action Policy or visit the University's Affirmative Action webpage.

The attorney-client privilege protects certain types of communications between the client and attorney as well as keeps those communications confidential.  The privilege applies to any communication that is:  (a) between an attorney and client; (b) for the purpose of soliciting or receiving legal advice, and (c) made in confidence and kept confidential.  The overall goal of the privilege is to allow a client to fully and freely disclose issues to his or her attorney (without fear of disclosure), so that the attorney in turn can provide effective advice and representation.  Ohio law does allow the attorney to disclose what would otherwise be confidential information in certain limited circumstances, such as when the attorney has the express written consent of the client.  Other exceptions include when the client is using the attorney’s services to commit fraud and also certain disputes regarding a deceased client.

“Attorney work product” consists of materials prepared in anticipation of litigation; such materials are protected from release during the discovery process in litigation, i.e., opposing counsel cannot obtain them.  That is, the materials are privileged.  A person other than the attorney (but acting under his or her direction) can prepare work product.  Materials covered under work product include statements, memoranda, briefs, notes of conversations and investigations, mental impressions, opinions, legal theories and certain analyses and other work to support those opinions and theories.

“Electronic discovery” or “e-Discovery” is information in electronic format that may be discoverable by the opposing party in litigation.  Often such information is referred to as “ESI,” or “electronically stored information.”  ESI includes email, documents, photos, video, databases, website content/blogs, telephone records/voicemail, text/instant message, other file types, and raw data.

When the Office of Legal Affairs is aware of threatened or actual litigation against the University, it typically will send out a “litigation hold” to individuals at the University who are suspected to have electronically-stored information or other documentation relevant to the litigation, to help ensure that such individuals do not inadvertently delete or otherwise destroy needed documentation.  This is because the University has an obligation to preserve relevant information when it learns, or reasonably should have learned, of pending or threatened litigation or a regulatory investigation.  If you are aware of threatened or actual litigation and are wondering about your obligations to preserve ESI or other documents, please contact the Office of Legal Affairs immediately.

“Preponderance of evidence” is a standard of proof used in some internal University proceedings, such as Title IX investigations. Practically speaking, what the standard means is: “Is it more likely than not that what the complainant alleges to have happened actually happened?” If the decision-maker in a proceeding (whether a student conduct hearing board, investigatory team, etc.) determines it is more likely than not that the alleged event occurred, then the factual finding will be that the event did indeed happen. Sometimes this is described as "50% plus a feather." If the persuasive value of the evidence is so evenly balanced that the decision-maker is unable to say whether the alleged event occurred, then the factual finding will be that the event did not happen. 

A tougher standard is used in criminal prosecutions.  Specifically, if an offense were charged by the Montgomery County Prosecutor’s office, ultimate conviction would require a finding that it is “beyond a reasonable doubt” that the elements of the offense were indeed met.  Under Ohio law, “‘Reasonable doubt’ is present when the [decision-makers], after they have carefully considered and compared all the evidence, cannot say they are firmly convinced of the truth of the charge. . . . ‘Proof beyond a reasonable doubt’ is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of the person's own affairs.”  O.R.C. § 2901.05.                  

Generally only vice presidents are authorized to sign contracts; click on the link for the Guidelines for Contract Review and Signature Authority. Certain categorical exceptions exist to this general framework, and depending on the situation, the unit’s vice president could do a delegation just for an individual specific contract. Legal review and review by other stakeholders at the University are required in most instances. To begin this workflow, go to go.udayton.edu/contractreview. Please allow at least two weeks for the required review. For more information, please contact Legal Affairs.

If you are a vice president and have signature authority by nature of your position, you may delegate to an individual, in writing, for a specific contract only. That written authorization should be retained with the contract. If you have signature authority because you oversee contracts that fit within a categorical exception (as outlined in the Guidelines), you also could delegate, in writing, on a specific contract basis (with the written authorization retained with the contract). Any categorical delegations should be avoided.

Effective July 1, 2019, expenditure authority is now separate from contract signature authority. To set up expenditure authority for someone, an email should be sent to the unit’s budget manager requesting that authority. The budget manager will then create a ticket request through TeamDynamix that routes through the Controller’s Office. Once the expenditure levels have been properly set up in Runway, the requesting budget manager will be notified.

If you are contacted by a government agency, law enforcement official, outside attorney or other third party to be interviewed with respect to an investigation, lawsuit or potential lawsuit, or someone outside the University asks you for documents or information, please inform the requester that such efforts should be coordinated with the University’s Office of Legal Affairs.  If you receive such a request, please contact the Office of Legal Affairs.

If you are contacted by an outside attorney in connection with University business or your work for the University, please notify the Office of Legal Affairs immediately.  Please do not speak or correspond directly with an attorney representing someone or threatening a claim or lawsuit against the University or against you in your official capacity for the University; such communications should be undertaken and/or overseen by the Office of Legal Affairs.  In cases where one of the University’s outside attorneys needs to contact you, someone in the Office of Legal Affairs will give you forewarning that such contact will happen (so that you will know you can talk with that attorney).

Please refer any subpoena to the Office of Legal Affairs.  Note that if education records are the subject of a subpoena, consistent with the University's Policy on Disclosure of Student Records (its "FERPA" Policy), the University will make a reasonable attempt to notify the student whose education records are affected by the order or subpoena of such impending release (typically 10 days advance notice).  Also the University's practice is to redact the names and other personally-identifying information of anyone not directly involved in the subpoena (for example, personally-identifying information about a student who is not a party to the legal proceeding).                

Yes, students should be required to sign a release before participating in any off-campus activity.  If you need help crafting an appropriate release form, please contact the Office of Legal Affairs.  Also be aware that any non-University entity that's part of that off-campus activity (for example, an outfit hosting an event or providing equipment) may have its own agreements that need to be signed, which may be designed to bind the students and/or the University.  The Office of Legal Affairs can assist you in reviewing and negotiating those agreements as well.

The University's standards are not the same as criminal standards.  That is, the University's Code of Conduct might find certain behavior unbecoming to the University community that does not amount to a crime.  Plus, the University applies a different standard of proof (typically, a "preponderance of evidence" standard) rather than the criminal system's standard of proof (the "beyond a reasonable doubt" standard), meaning, generally, that the criminal system requires more exacting, conclusive evidence before a person can be found responsible.  The criminal system uses a tougher standard because the consequences faced by criminal defendants are so serious -- they risk losing their liberty (i.e., going to jail) if found guilty.

University staff and faculty who have students reporting to them who have access to confidential information should take steps to ensure those students understand and agree to preserve the confidentiality of those records, and that they understand the confidential information may only be accessed consistent with their student-employment role.  That is, student employees are not permitted to peruse confidential records just because they're "curious"; access must be required by the duties of the job.  If education records will be accessed, you should make sure the student is aware of his or her obligation to comply with the University's Policy on Disclosure of Student Records (also known as the "FERPA Policy").  We recommend that you have all student employees with access to confidential information sign a Student Employee / Volunteer Confidentiality Agreement.  The signed agreement should be kept by the office that hired the student employee.