CHAPTER 4C - PERSONNEL RULES
SECTION 14 OVERVIEW OF THE PROCESS AND PROCEDURES FOR REVIEW HEARING OF LAYOFF/TERMINATION OF ACADEMIC STAFF FOR REASONS OF BUDGET OR PROGRAM UNDER UWSP 12.05
(See Chapters UWS 12 & UWSP 12)
(To see who has authority to approve changes to this section, please see the Approval of Changes page).
INTRODUCTORY COMMENTS.
Applicable Documents.
An academic staff member contemplating a request for hearing on layoff or termination is advised to become familiar with
• Chapters UWSP 9 - 13 (see 4A.2), the institutional academic staff personnel rules;
• unit or departmental personnel rules and procedures;
• appropriate sections of the Wisconsin Administrative Code, the UW System academic staff personnel rules;
• Chapters 227.45 and 227.46 of the Wisconsin statutes; and
• related documents in this handbook.
Counsel.
An academic staff member who has received notification of layoff or termination or who is contemplating a hearing on layoff or termination may wish to seek advice from senior academic staff or faculty familiar with the policies and procedures, and is advised to retain legal counsel. The right to be represented at hearings by individuals of the academic staff member’s choice is guaranteed under Chapters UWS 12 and UWSP 12 (see 4A.2).
Time Limits.
Termination of Appeal.
Failure to meet any time limits established by these procedures will likely end the proceedings. An academic staff member considering an appeal of notification of a decision to lay off is urged to review these procedures and to act promptly.
Length of Process.
The time limits are intended to ensure action within a reasonable time period; nevertheless, the appeal process may be lengthy. The deliberative process in particular may take several months to conclude: the issues are significant; there is no limit on the number of deliberative sessions which may be held; and there is no limit on the length of the recesses which may occur between sessions.
Presence at Meetings.
No Exclusions.
Under the provisions of 19.89 of the Open Meetings Law, no member of a governmental body may be excluded from any meeting of the body. In addition, no member may be excluded from meetings of the body’s subunits unless the rules of the body specifically state otherwise.
Personnel Matters.
No academic staff member under consideration for any personnel matter may be excluded from a department or unit meeting at which the matter is to be considered, even if the meeting is moved into closed session. No academic staff member may be excluded from any departmental or unit committee meeting at which the matter is to be considered unless departmental or unit rules specifically state to the contrary.
Right to Open Meeting.
Under the provisions of the Open Meetings Law, an academic staff member has the right to request and receive an open evidentiary hearing for any meeting of a unit or subunit involving consideration of dismissal for that individual.
NOTE.
1. Although layoff for financial emergency or reasons of program is not considered dismissal under Board rules, it is likely that layoff is dismissal for purposes of the Open Meetings Law.
2. A meeting with an administrator for the purpose of discussion of possible layoff, even where the end result of the discussion may be a recommendation to lay off, is not subject to the provisions of the Open Meetings Law: an individual administrator is not a “formally constituted subunit.”
Under the Open Meetings Law, even when departmental or unit policies provide that subunit or committee meetings be restricted to members of the subunit or committee, any academic staff member under consideration has the right to request and receive an open meeting for the portion of the meeting that constitutes an evidentiary hearing involving consideration of dismissal of that individual.
Unit/Departmental Policies.
Normally, unit/departmental policies will require a written request for an open meeting reasonably in advance of the meeting.
Consultation Prior to Layoff.
Chancellor.
Before any member of the academic staff may receive notification of layoff by the chancellor under the provisions of UWSP 12 (see 4A.2), the chancellor shall have consulted with and sought the advice of the Academic Staff Council as specified in UWSP 12.01 and in the paragraphs below headed “Academic Staff Council.”
Justification.
The chancellor shall have provided to the Council all of the evidence and justification to support contemplated layoffs, including evidence that alternatives have been exhausted. These alternatives include but are not limited to
• increases in fees;
• retraining;
• nonrenewal of fixed term or probationary academic staff prior to layoff of indefinite appointment academic staff;
• reassignment; and
• other methods of budget reduction.
Academic Staff Council.
Consultation.
Before any member of the academic staff may receive notification of layoff and following consultation with the chancellor, the Academic Staff Council shall have met the requirements of UWSP 12.01 (4) (see 4A.2). The Council shall have
• reviewed the documentation provided by the chancellor;
• consulted with the personnel of the affected budget area or program;
• consulted, as appropriate, with other appropriate personnel;
• consulted with the Common Council or a designated Common Council committee;
• determined whether alternatives have been exhausted;
• provided an opportunity for the affected areas to give their advice to the Council as specified below (“Affected Unit/Department”); and
• provided its written advice concerning the contemplated layoffs, and the rationale for that advice, to the chancellor.
Failure to Act.
If the Council chooses not to respond under these provisions, the chancellor shall determine the individuals to be affected, using such advice as deemed of value.
Affected Unit/Department.
Consultation.
Before any member of the academic staff may receive notice of layoff, before the Academic Staff Council sends its advice and recommendations to the chancellor, and following consultation with the Academic Staff Council, the affected areas shall make recommendations to the Council for layoffs under the provisions of UWSP 12.03 (see 4A.2) and these procedures.
• Recommendations from an affected academic department shall be made by the tenured faculty of the department, in consultation with other departmental faculty and academic staff and other appropriate personnel.
• Recommendations from an affected support unit shall be made by supervisory personnel and indefinite appointment academic staff of the affected operational area(s), in consultation with other personnel in the unit and other appropriate personnel.
Failure to Act.
If the affected unit or department does not respond, the Council shall make its recommendations to the chancellor using such advice as deemed of value.
Notification.
General.
An academic staff member whose position has been recommended for elimination shall receive prompt written notification from the chancellor. Written notification of layoff or termination shall include
• reasons and data leading to the selection of the divisions, units, operational areas, colleges, schools, departments, or programs selected for reductions;
• the basis on which the individual position was identified, and the criteria, data, and reasons supporting the choice;
• the effective date of the layoff; and
• a copy of Chapter UWSP 12 (see 4A.2) and these policies and procedures.
Effective Date of Layoff.
Indefinite Appointment.
Notification of layoff for academic staff with indefinite appointment must be given not less than 12 months prior to the effective date, unless there are compelling reasons to the contrary (i.e., almost immediate cutoff of funds). The effective date shall normally be the end of the academic year for an academic year appointment and June 30 for an annual appointment.
Probationary Appointment.
Notification of layoff for academic staff with probationary appointments must be given not less than 3 months prior to the end of the appointment in the 2nd year, and 12 months thereafter, unless there are compelling reasons to the contrary (i.e., almost immediate cutoff of funds). The effective date shall normally be the end of the academic year for an academic year appointment and June 30 for an annual appointment.
Fixed Term Appointment, Half-time or More with 7 Years of Service.
Notification of layoff for academic staff with fixed term appointments of .5 FTE or more and who have accumulated 7 years of service at .5 FTE or more per semester must be given not less than 9 months prior to the end of the appointment in the 8th through 10th years, and 12 months thereafter, unless there are compelling reasons to the contrary (i.e., almost immediate cutoff of funds). The effective date shall normally be the end of the academic year for an academic year appointment and June 30 for an annual appointment.
Fixed Term Appointment, Half-time or More with Less than 7 Years.
Notification of layoff for academic staff with fixed term appointments of .5 FTE or more with less than 7 years of service at .5 FTE per semester must be given not less than 3 months prior to the end of the appointment in the first 2 years, and 6 months before the end of the appointment during the 3rd through 7th years, unless there are compelling reasons to the contrary (i.e., almost immediate cutoff of funds). The effective date shall normally be the end of the academic year for an academic year appointment and June 30 for an annual appointment.
Fixed Term Appointment, Less than Half-time.
Notification of layoff for academic staff with fixed term appointments of less then .5 FTE must be given not less than 3 months prior to the end of the appointment in the first 2 years, and 6 months before the end of the appointment thereafter, unless there are compelling reasons to the contrary (i.e., almost immediate cutoff of funds). The effective date shall normally be the end of the academic year for an academic year appointment and June 30 for an annual appointment.
Termination, Indefinite and Probationary Appointments.
During the notification period and prior to layoff, the chancellor may offer and the academic staff member on an indefinite or a probationary appointment may accept either
• terminal leave and retirement;
• relocation leave accompanied by resignation; or
• alternate employment at UWSP.
Acceptance of either of the first 2 alternatives ends the academic staff member’s association with the UW System at the end of the leave period.
Entitlement to Review.
An academic staff member on indefinite appointment, or on probationary appointment, or on fixed term appointment with at least 3 years of service at UWSP, and who has received notification of layoff is entitled to a review before a hearing committee of the Academic Staff Mediation Subcommittee on whether the layoff decision is appropriate.
Presumption of Good Faith.
An academic staff member who requests a review, and the committee conducting the hearing, shall presume that the decision to curtail the affected program was made in good faith and for proper reasons. However, if the academic staff member shows that the chancellor’s decision to layoff is contrary to the advice of the Academic Staff Council, the chancellor or a designee must present evidence to support the decision.
Hearing Not Requested.
If an academic staff member does not request a hearing, the chancellor’s recommendation is considered proper and the layoff is effective on the date specified in the notification.
Nonrenewal Not Layoff.
Nonrenewal, or a decision not to reappoint fixed term academic staff, regardless of reasons, is not a layoff under these policies and procedures.
Layoff Proceeds.
A request for a hearing does not forestall the actual layoff if the effective date is reached prior to the conclusion of an appeal.
FILING REVIEW REQUEST.
Request for Supporting Data.
Upon receipt of notification of designation for layoff, the academic staff member eligible for a hearing under “Entitlement to Review” (immediately above) has 20 days in which to request data related to the decision to layoff. Failure to meet the 20 day deadline will likely end the opportunity for a review hearing.
Written Request.
The request for data shall be in writing and shall be addressed to the chancellor.
Request Honored.
Any request from an eligible academic staff member who has received notification of designation for layoff shall be honored, and the material provided to the academic staff member within 15 days of receipt of the written request.
Available Information.
The academic staff member may request and shall receive upon request
• a written statement of the reasons for the decision to layoff;
• a summary of the reasons and data leading to the selection of the various units or programs in which reductions are to be made;
• a statement of the basis upon which the individual was selected, including if and how seniority was determined and applied, or if seniority was not the basis, the data and reasons supporting the choice;
• the effective date of layoff; and
• a copy of Chapter UWSP 12 (see 4A.2), these policies and procedures, and such other information or procedural regulations as the chancellor or Academic Staff Council deems appropriate.
Request for Hearing.
Written Request.
Upon receipt of the supporting data described above, the eligible academic staff member has 20 days in which to request a review hearing by the Academic Staff Mediation Subcommittee.
• Failure to meet the 20 day deadline will likely end the opportunity for a hearing.
• The request shall be in writing and addressed to the chancellor and the chairperson of the subcommittee.
• As the burden of proof is on the academic staff member to establish a prima facie case that the decision was improper, the request shall state specifically the grounds upon which the academic staff member is seeking to establish the impropriety of the layoff decision.
• The request for review may also include a request for relevant information supplementary to that contained in the letter of notification
No Request Filed.
If an academic staff member notified of layoff does not file a request for hearing with the Academic Staff Mediation Subcommittee, the layoff shall be effective upon the date specified in the letter of notification.
Required Action.
Notification.
If the chairperson determines that the individual requesting the hearing holds an academic staff appointment and is eligible for review hearing, the chairperson will
• contact the academic staff member to determine that the written request contains all pertinent facts, and to remind the academic staff member of the right of access to all evidence upon which the administration intends to rely to support the decision to lay off;
• provide written notification of the request for hearing to the chancellor so System legal counsel may be advised a case is pending;
• begin a file of all correspondence concerning the hearing, which will be passed on to the chairperson of the hearing committee;
• provide written notification that a hearing is in progress to the academic staff member; the administrative heads of the academic staff member’s operational area and unit, or department chairperson; the appropriate executive director and vice chancellor, or dean; the provost; the chancellor; and the chairpersons of the Academic Staff Council and Common Council; and
• provide copies of all correspondence to the
o academic staff member;
o hearing committee members; and
o chancellor.
Appointment of Hearing Committee.
The chairperson will also appoint a hearing committee composed of a minimum of 5 persons, at least 3 of whom must be members of the Academic Staff Mediation Subcommittee. There will be broad representation from the university but not necessarily a member from each division or college.
• Normally, at least 3 of the appointed members shall have had either
o previous experience as a member of a hearing committee under either UWSP 10.04, 11.04, 12.05, 13.01, 13.02 (see 4A.2) or other similar hearing, or
o orientation and training for a hearing procedure.
• One member, who normally shall have had previous experience as a member of a hearing committee under either UWSP 10.04, 11.04, 12.05, 13.01, 13.02 (see 4A.2) or other similar hearing, shall be designated as the chairperson of the committee.
• The following academic staff members may not serve on the hearing committee:
o anyone who is a member of the Academic Staff Council or any of its subcommittees which participated in the consultation regarding layoffs;
o anyone who is a member of the academic staff member’s department/unit;
o anyone who assisted or consulted with the department/unit regarding individual designations for layoff; and
o anyone who is a material witness.
• If otherwise qualified, the chairperson of the Academic Staff Mediation Subcommittee may serve as either a member or as chairperson of the hearing committee.
• Reasonable effort will be made to ensure that the members of the hearing committee are acceptable to both parties in the hearing process.
o Normally, this will be accomplished by informal contact with the proposed members and the parties to the hearing before the formal appointment.
o The decision of whom to appoint is solely that of the chairperson of the subcommittee.
• After the committee is appointed, the academic staff member has the unrestricted right to challenge and remove 1 member from the hearing committee.
• The decision on other challenges to committee members shall be made by the committee, excluding the member under challenge.
o If members are disqualified or disqualify themselves, the remaining members consult with the chairperson of the Academic Staff Council and the chairperson of the Academic Staff Mediation Subcommittee and appoint other members to serve.
Hearing Date.
The hearing committee shall meet to hear the matter within 20 days of receipt of the request for a hearing, except that this time limit may be extended by mutual consent of the parties or by order of the hearing committee. The academic staff member requesting a hearing must receive written notice of the hearing at least 10 days prior to the hearing.
Hearing Committee Chairperson’s Responsibilities.
Once the hearing committee is appointed, the chairperson of the hearing committee assumes responsibility for the hearing process. The chairperson shall
• conduct the hearing under the provisions of UWS 12.04/UWSP 12.04 and 12.05 or 12.06 (see 4A.2), the provisions of Chapter 227.45 and 227.46, these policies and procedures, and the guidelines for hearings (which may be found in the following subsection or requested from the chairperson of the Academic Staff Mediation Subcommittee);
• establish appropriate communication with the chancellor; the vice chancellor; the academic staff member, the administrative heads of the academic
• staff member’s operational area and unit, or department chairperson; the appropriate executive director and vice chancellor, or dean; and the chairperson of the Common Council, and keep each informed of the proceedings in the hearing;
• keep records of all correspondence among all the principals from the initiation of the hearing through its conclusion;
• appoint a secretary for the hearing committee (normally an associate vice chancellor), and provide for a verbatim transcript of the hearing (usually a sound recording);
• secure appropriate facilities, schedule evidentiary hearings, and provide notices to conform with the Open Meetings Law;
• secure appropriate facilities and schedule and conduct deliberative sessions in which the committee formulates its findings and recommendations;
• prepare a summary of the evidence and the written report of the commit-tee’s findings and recommendations and transmit these materials and a verbatim record of the hearing to the academic staff member and to the chancellor, and send copies of the summary and the report to the administrative heads of the academic staff member’s operational area or unit, or department chairperson; the appropriate executive director and vice chancellor, or dean; the chairperson of the Common Council; and the provost;
• send a copy of the hearing procedures with each written notification of the hearing, and
• send written notification of the hearing to the academic staff member; the chancellor; the provost; the administrative heads of the academic staff member’s operational area and unit, or department chairperson; the appropriate executive director and vice chancellor, or dean; and witnesses asked to appear on behalf of the parties or called by the hearing committee.
Written notification of the hearing shall include statements
o of the date, time, and place of the hearing;
o that all parties may be represented by an individual(s) of their choice, which may include legal counsel;
NOTE. If counsel has been requested by the committee from the chancellor, notice will include a statement that the committee will have legal counsel present at the hearing.
o that normally, by a vote of the committee, the evidentiary hearing and the deliberative sessions will be closed but the academic staff member, upon timely written request to the chairperson, has the right to request an open evidentiary hearing and any such request must be honored;
o of whether the academic staff member has requested an open evidentiary hearing;
o that both parties have a right to copies of all documentary evidence relevant to the hearing;
o that the academic staff member must establish a prima facie case that improper factor(s) enumerated in UWSP 12.05.5 (a), (b) (see 4A.2) ,or (c) significantly entered into the decision to lay off or the committee, in deliberative session, must find the decision to have been proper, and adjourn the hearing;
NOTE. Hearings under 12.05 (see 4A.2) may require 2 evidentiary sessions and 2 deliberative sessions. These are explained later, under “Procedure for Evidentiary Hearing and Deliberative Meeting.”
o that if a prima facie case is established, the hearing shall be reconvened and the chancellor or a designee afforded an opportunity to present evidence to support the decision, after which the academic staff member may present evidence in rebuttal;
o that after hearing all the evidence, the committee must make its determination as follows:
The committee first determines whether 1 or more improper factors entered into the decision to lay off. Unless the committee is convinced that an improper factor entered significantly into the decision, it must find the decision to have been proper.
If the committee finds 1 or more improper factors may have entered into the decision, it must nonetheless find the decision to have been proper if it is convinced that
• there were legitimate programmatic or budgetary reasons for layoff;
• the determination of those reasons was made as prescribed and in accordance with the provisions of 12.01 (see 4A.2); and
• the decision to layoff the academic staff member was in accordance with the provisions of 12.03 (see 4A.2).
The committee shall find the decision to have been improper if the committee believes that 1 or more improper factors entered into the decision and
• there were no legitimate programmatic or budgetary reasons for layoff; or
• the determination of those reasons was not made as prescribed in or in accordance with the provisions of Chapter UWSP 12.01 (see 4A.2); or
• the decision to lay off the academic staff member was not in accordance with the provisions of UWSP 12.03 (see 4A.2).
In reaching its decision, the committee must presume the decision to curtail the program was made in good faith and for proper reasons, and shall not substitute its judgment or priorities for that of the administration. However, if evidence is presented to show that the chancellor’s decision to lay off the individual is contrary to the advice of the Academic Staff Council as provided under UWSP 12.01 (see 4A.2), the chancellor or a designee shall present evidence and data in support of the decision to the hearing committee.
o that all parties, including witnesses, are expected to provide to the hearing committee chairperson sufficient copies of their testimony for all other parties, and that these materials should be provided in sufficient time prior to the hearing for distribution to all parties, but that failure to provide such copies will not preclude an individual from giving testimony;
o that either party may call persons to offer evidence or testimony;
o that both parties will be sent a list of the names of any persons to be called by either party, or by the hearing committee;
o that either party may offer testimony from any source;
o that the hearing committee is not bound by statutory rules of evidence but may hear testimony having reasonable probative value;
o that both parties have the right, under guidelines established by the chairperson, to question persons offering testimony;
o that adjournments shall be granted to enable either party to investigate evidence as to which a valid claim of surprise is made;
o that any personal notes made during the procedures and retained by a participant are subject to subpoena if the appeal is not resolved at the institutional or System level and becomes a legal matter;
o that a quorum for the evidentiary hearing consists of 4 members of the hearing committee;
o that a quorum for the deliberative sessions consists of 4 members of the hearing committee, except that in an emergency, the chairperson may declare a quorum when only 3 members are present;
o that the hearing committee shall give a report of its findings and decision to the chancellor; the provost; the administrative heads of the academic staff member’s operational area and unit, or department chairperson; the appropriate executive director and vice chancellor, or dean; the chairperson of the Common Council; and the academic staff member; and
o that the academic staff member’s and the chancellor’s copies shall be accompanied by both a verbatim record of the hearing and a summary of the evidence, unless the academic staff member is represented by counsel, in which case the verbatim record and summary shall be sent to counsel.
GUIDELINES FOR HEARINGS.
Quorum, Notice, and Confidentiality.
Quorum.
While all 5 members will be present whenever possible, a quorum for the hearing and for meetings of the hearing committee consists of 4 members of the committee.
In an emergency, the chairperson of the hearing committee has the discretion to declare a quorum for deliberative sessions when only 3 members of the hearing committee are present.
Notice.
Notices of meetings shall be sent to the University Newsletter for publication (without identifying the academic staff member) and shall indicate whether the meetings will be open or closed.
Confidentiality.
Committee.
All matters related to the academic staff member and the hearing are maintained in the strictest confidentiality by hearing committee members, except as may be necessary to meet provisions of the Open Meetings Law or other similar statutory, administrative rule, or academic staff governance requirements.
Documents.
Following the conclusion of all deliberations and the submittal of the hearing committee’s report, the chairperson shall collect all drafts and other documents related to the hearing from the members of the committee, from any appointed secretary, and from all other parties except the academic staff member and academic staff member’s representative(s). All minutes and materials provided by the parties and not forwarded to the chancellor as a part of the report shall be sealed and filed in the office of the chancellor for a period of 5 years, after which they shall be destroyed as permitted under the Public Records Law.
NOTE. Participants are reminded that any personal notes made during the procedures and retained after the hearing are subject to subpoena if the appeal is not resolved at the institutional or System level and becomes a legal matter.
Evidentiary and Deliberative Sessions.
The hearing process consists of an evidentiary hearing and a deliberative meeting.
Evidentiary Hearing.
The purpose of the initial session of the evidentiary hearing is to provide an opportunity for the academic staff member to present evidence that one or more improper factors in UWSP 12.05 (5) (a),(b),or (c) (see 4A.2) entered into the decision to lay off. The academic staff member has the right to be represented by another individual(s), which may be legal counsel. The hearing committee is not bound by legal rules of evidence. The committee must make a verbatim record of the hearing.
Deliberative Session.
After the academic staff member has presented evidence, the hearing committee deliberates on whether the evidence presented constitutes a prima facie case that 1 or more improper factors entered into the decision to lay off.
• If the hearing committee finds no case established, it finds the decision to have been proper, reports its findings to the academic staff member and the chancellor, and adjourns.
• If the hearing committee finds that improper factors entered into the decision, it reconvenes in a second evidentiary hearing.
Second Evidentiary Hearing Session.
If the committee finds that a prima facie case was established, the chancellor or a designee is entitled to present evidence to support the layoff decision.
• Following the administration’s presentation, the academic staff member may present evidence in rebuttal.
• Following the academic staff member’s rebuttal presentation, if any, the committee reconvenes in a second deliberative session.
Second Deliberative Session.
The purpose of the second deliberative meeting is for the hearing committee to reach its conclusions, after which the chairperson of the hearing committee shall prepare a summary of the evidence and write a draft report of the findings and recommendations of the hearing committee. Each member of the hearing committee shall sign the final report or file a dissent. The report shall be distributed as soon as feasible following the close of deliberations.
Closed and Open Sessions.
General Guideline.
Evidentiary hearings and deliberative meetings will normally be closed, as permitted by the Open Meetings Law, unless the chairperson of the hearing committee receives from the academic staff member a written request for an open evidentiary hearing, in which case all evidentiary sessions shall be open. Closed meetings require a majority vote of the hearing committee, by a roll call vote.
Evidentiary Hearings: Who May Attend/Speak.
Closed Hearings.
If the evidentiary hearing is closed, only parties directly involved in the hearing may attend. Those permitted to attend, who may speak when recognized by the chairperson for that purpose, are
• members of the hearing committee;
• the academic staff member;
• the chancellor or a designee;
• representatives for the parties;
• witnesses for the parties;
• individuals specifically called or designated by the hearing committee, which may include legal counsel; and
• an appointed secretary, who need not be a member of the committee.
Open Hearings.
If the evidentiary hearing is open, anyone may attend but only those parties directly concerned with the hearing (delineated above) and recognized for the purpose of speaking by the chairperson of the hearing committee are permitted to speak.
Deliberative Meetings: Who May Attend/Speak.
Only members of the hearing committee, an appointed secretary (who need not be a member of the committee), and the committee’s legal counsel (if any) are permitted to attend, and may speak when recognized by the chairperson for that purpose. Only members of the hearing committee participate in determining findings of fact and decision.
Procedure for Evidentiary Hearing and Deliberative Meeting.
Introduction.
A copy of these procedures may be requested from the chairperson of the Academic Staff Mediation Subcommittee or the Associate Vice Chancellor for Personnel, Budget, and Grants.
Presiding Officer.
The chairperson of the hearing committee convenes the hearing and serves as presiding officer. The chairperson assumes all the normal responsibilities of a committee chairperson and rules on such questions as may arise on the procedure of the hearing, admissibility of evidence, and all other matters related to the hearing.
If the committee has legal counsel, the chairperson may request the advice of counsel on all matters pertaining to the hearing.
Evidentiary Hearing.
The evidentiary hearing normally proceeds in the order described here, but the chairperson may change the order as circumstances may require.
• Call to order; introduction of members of the committee and of the secretary.
• Explanation of the Open Meetings Law and either
o explanation of limitations of open meetings, if an open hearing has been requested, or
o a request for a motion to close the hearing under the appropriate section(s) of 19.85 Wis. Stats. [19.85 (a), (b), (c), or (f), and a roll call vote on the motion.
• Introduction of the academic staff member, and the academic staff member’s representative(s), if any.
• Introduction of the chancellor or the chancellor’s designee, and the administration’s representative(s), if any.
• Announcement that
o the initial session affords the academic staff member the opportunity to establish a prima facie case that 1 or more improper factors entered into the decision to lay off;
o following the academic staff member’s presentation of evidence and testimony, the hearing will be recessed to a deliberative session; and
o depending upon the committee’s findings, the hearing will either be
reconvened and adjourned following an announcement that no prima facie case was established, or
reconvened to permit the chancellor or a designee to present evidence in support of the decision.
• Presentation of the academic staff member’s case by the academic staff member or the academic staff member’s representative, but not the testimony of witnesses.
• Questions of the academic staff member by the administration or the administration’s representative.
• Presentation of witnesses on behalf of the academic staff member.
• Questions of witnesses by the administration or the administration’s representative.
• Rebuttal questions of witnesses by the academic staff member or the academic staff member’s representative.
• Presentation by any witnesses who may have been called by the hearing committee.
• Questions of committee witnesses by the administration or the administration’s representative.
• Questions of committee witnesses by the academic staff member or the academic staff member’s representative.
• Questions of all witnesses by members of the hearing committee.
• Recess of the evidentiary hearing.
If the deliberative meeting does not follow immediately after the evidentiary hearing, the chairperson will request a motion to recess the hearing and to reconvene at the deliberative meeting [if possible, the date and time of the session will be included in the motion to recess], and shall conduct a roll call vote on the motion.
Deliberative Meeting: Issue for Determination.
The committee’s sole determination at this point is whether the academic staff member established a prima facie case that 1 or more improper factors entered into the decision to lay off.
No Prima Facie Case Established.
If the committee finds that no prima facie case was established, the hearing shall be reconvened and the chairperson will announce the decision, indicate that the committee’s report of findings will be forthcoming to the academic staff member and the chancellor as soon as feasible, and adjourn the hearing.
The committee will reconvene in deliberative meeting to prepare its report of its findings and recommendation prepared as described below.
Prima Facie Case Established.
If the committee finds that a prima facie case was established, the hearing shall be reconvened, the chairperson will announce the decision, and proceed with the second part of the evidentiary hearing.
Determination by Vote.
Decisions on the establishment of a prima facie case shall be determined by a majority of the members of the hearing committee. The vote shall be a roll call vote, which shall be recorded.
Second Evidentiary Hearing Session.
• Presentation of the administration’s case in support of the layoff decision, but not the testimony of witnesses other than the academic staff member (if the academic staff member is called by the administration).
• Questions of the administration by the academic staff member or the academic staff member’s representative.
• Presentation of witnesses on behalf of the administration.
• Questions of the witnesses by the academic staff member or the academic staff member’s representative.
• Rebuttal questions of witnesses by the administration or its representative.
• Presentation by any witnesses who may have been called by the hearing committee.
• Questions of committee witnesses by the administration or the administration’s representative.
• Questions of committee witnesses by the academic staff member or the academic staff member’s representative.
• Questions of all witnesses by members of the hearing committee.
• Rebuttal or closing comments by the administration or the administration’s representative.
• Rebuttal evidence by the academic staff member or the academic staff member’s representative, which may include the calling of additional witnesses or the recall of witnesses previously called.
• If the academic staff member calls any witnesses in rebuttal, the administration and then the committee have the opportunity to question those witnesses.
• Rebuttal or closing comments by the academic staff member or the academic staff member’s representative.
• Questions of the administration by members of the hearing committee.
• Questions of the academic staff member by members of the hearing committee.
• Rebuttal questions of the administration by members of the hearing committee, if any.
• Conclusion of the evidentiary hearing.
If the deliberative meeting does not follow immediately after the evidentiary hearing, the chairperson will request a motion to recess the hearing and to reconvene at the deliberative meeting [if possible, the date and time of the session will be included in the motion to recess], and shall conduct a roll call vote on the motion.
Second Deliberative Session.
The hearing committee shall deliberate on the hearing and shall write a summary of the evidence and a report which includes the findings of law and decision, and the recommendations of the committee.
Findings.
No Case Established.
If the academic staff member did not establish a prima facie case in the initial part of the hearing, the committee shall find the decision to have been proper and reports this finding to the chancellor, to the academic staff member, and the other parties receiving copies of the report (enumerated below).
Case Established.
If the academic staff member did establish a prima facie case and the hearing moved into the second part of the hearing, the hearing committee shall make its determination as follows–
• the committee shall first consider whether 1 or more improper factors in UWSP 12.05 (5) (a), (b), or (c) (see 4A.2) entered into the decision to lay off.
Unless the committee is convinced that an improper factor entered significantly into the decision, it must find the decision to have been proper.
• If the committee believes 1 or more improper factors may have entered into the decision, it must nonetheless find the decision to have been proper if it is convinced that
o there were legitimate programmatic or budgetary reasons for layoff;
o the determination of those reasons was made as prescribed and in accordance with the provisions of 12.01 (see 4A.2) ; and
o the decision to layoff the academic staff member was in accordance with the provisions of 12.03 (see 4A.2).
• The committee shall find the decision to have been improper if the committee believes that 1 or more improper factors entered into the decision and
o there were no legitimate programmatic or budgetary reasons for layoff; or
o the determination of those reasons was not made as prescribed in or in accordance with the provisions of Chapter UWSP 12.01; or
o the decision to lay off the academic staff member was not in accordance with the provisions of UWSP 12.03 (see 4A.2).
• In reaching its decision, the committee must presume the decision to curtail the program was made in good faith and for proper reasons, and shall not substitute its judgment or priorities for that of the administration. However, if evidence is presented to show that the chancellor’s decision to lay off the individual is contrary to the advice of the Academic Staff Council as provided under UWSP 12.01 (see 4A.2), the chancellor or a designee shall present evidence and data in support of the decision to the hearing committee.
Determination of Findings.
Decisions on the validity of the layoff and on any recommendations shall be determined by a majority of the members of the hearing committee. The vote shall be a roll call vote, which shall be recorded.
Decision and Recommendations.
The committee shall send its report of findings, decision, and recommendations, if any, to the chancellor as soon as feasible following the conclusion of the deliberative session(s).
• If the committee finds the decision to lay off to have been proper, it shall so report, normally without recommendation.
• If the committee finds the decision to have been improper, it shall so report and may elect to make a recommendation, not limited because of enumeration, to
o discontinue layoff proceedings entirely; or
o rescind the notification of layoff for the individual and begin the layoff process anew.
Report.
At an appropriate time in the deliberations, the chairperson shall recess the meeting and shall prepare a summary of the evidence and a draft report. The draft shall be circulated among the members, after which the committee shall reconvene to review the draft and make appropriate modifications. After the report has been adopted by the hearing committee, each member of the committee shall sign the report or file a dissent.
• The report shall be adopted by a majority of the members of the hearing committee. The vote shall be a roll call, which shall be recorded.
• The report shall be distributed as soon as feasible after the close of deliberations but not later than 20 days following adjournment.
• The chairperson provides a verbatim record of the hearing, a summary of the evidence, and a copy of the report to both the academic staff member and the chancellor, and a copy each of the report to the provost; the administrative heads of the academic staff member’s operational area and unit, or department chairperson; the appropriate executive director and vice chancellor, or dean; and the chairperson of the Common Council.
Chancellor’s Action.
Decision Found Proper.
If the committee has found the decision to have been proper, the layoff shall be effective on the date specified in the letter of notification.
Board Review.
The academic staff member may request a review by the Board. The Board decides whether to grant the review.
Decision Found Improper.
If the committee has found the decision to have been improper, the chancellor shall review and give careful consideration to the commit-tee’s findings.
Recommendation Accepted.
If the chancellor accepts the committee’s findings, the chancellor’s decision is final.
Recommendation Not Accepted.
If the chancellor contests the committee’s finding that the decision was improper, the chancellor shall afford the academic staff member an opportunity to discuss the report within 20 days after receiving it from the committee. Within 20 days of the meeting with the academic staff member (or of the date of the meeting, if the academic staff member chooses not to attend), the chancellor shall provide the academic staff member with a written decision, which shall be final unless the Board, at the request of the academic staff member, grants a review on the record.
Substantial Differences.
If the chancellor’s proposed decision differs substantially from the recommendations of the hearing committee, the chancellor shall promptly consult the committee and provide it a reasonable opportunity for a written response prior to rendering a final decision.