CHAPTER 4C - PERSONNEL RULES

SECTION 8 - PROCEDURES FOR HEARINGS FOR FACULTY ON GRIEVANCES UNDER UWSP 6.02

(See Chapters UWS 6 & UWSP 6)

(To see who has authority to approve changes to this section, please see the Approval of Changes page).

INTRODUCTORY COMMENTS.

Grievances Defined.

Grievances may be brought by faculty members who believe their rights have been violated or that they have been treated unfairly.

Exceptions.

Actions relating to the following are not subject to a grievance under the provisions of Chapters UWS 6/UWSP 6.02 (see 4A.2); resolution must be sought under other appropriate sections of the personnel rules:

• renewal;

• consideration of tenure;

• layoff or termination for financial exigency;

• dismissal; and

• disciplinary action.

In addition, unless a faculty member can demonstrate through clear and compelling evidence that statements made on peer evaluations are false, peer evaluations–regardless of specific allegations of inappropriate behavior–are not subject to grievances under Chapters UWS and UWSP 6.02.

Applicable Documents.

A faculty member against whom a grievance has been filed or who is contemplating filing a grievance is advised to become familiar with

• Chapters UWSP 1-13 (see 4A.2), the institutional personnel rules;

• departmental personnel rules and procedures;

• appropriate sections of the Wisconsin Administrative Code, the UW System faculty and academic staff personnel rules; and

• related documents in this Handbook.

Counsel.

A faculty member who has been notified that a grievance has been brought against that faculty member or a faculty member who is contemplating filing a grievance may wish to seek advice from senior faculty or legal counsel familiar with the policies and procedures. The right to be represented at meetings or hearings by individuals of the faculty member’s choice is guaranteed under these procedures.

Time Limit.

Termination of Hearing.

Failure to meet any time limits established by these procedures will likely end the proceedings. A faculty member against whom a grievance is brought 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 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 that body. In addition, no member may be excluded from meetings of any of the body’s subunits unless the rules of the parent body specifically state otherwise.

Personnel Matters.

No faculty member under consideration for any personnel matter (including consideration of filing of a grievance or taking action on a grievance) may be excluded from a department meeting at which the matter is to be considered, even if the meeting is moved into closed session. No faculty member may be excluded from any departmental committee meeting at which the matter is to be considered unless departmental rules specifically state to the contrary.

Hearings and Closed Sessions.

Normally, a hearing committee will move into closed session as permitted under the Open Meetings Law. A decision on whether to grant a request from a faculty member for an open evidentiary hearing lies solely with the committee.

INFORMAL RESOLUTION OF GRIEVANCES.

Lowest Level Resolution.

Problem Arises at Department, Division, or School Level.

If the problem arises at the department, division, or school level, faculty members who feel their rights have been violated or that they have been dealt with unfairly shall first seek a mutually satisfactory resolution of the problem at the department, division, or school level.

• If the grievance is not resolved at the department, division, or school level, the faculty member shall seek resolution at the college level.

• If the grievance is not resolved at the college level, the faculty member may either seek informal resolution from the vice chancellor or request a hearing conducted by a hearing committee appointed by the chairperson of the Faculty Mediation Subcommittee.

NOTE. An aggrieved faculty member may elect to bring a representative, which may be legal counsel, to any meeting at any level to discuss informal resolution.

Problem Arises at College Level.

If the problem arises at the college level, the faculty member shall first seek a mutually satisfactory resolution of the problem at the college level.

Problem Arises Above the College Level.

If the problem arises at the vice chancellor’s or chancellor’s level, the faculty member may either seek a mutually satisfactory resolution of the problem at the appropriate level or request a hearing conducted by a hearing committee appointed by the chairperson of the Faculty Mediation Subcommittee.

• If informal resolution is sought but the grievance is not resolved, the faculty member may request a hearing.

Procedure for Informal Resolution.

In an attempt to reach informal resolution, regardless of the level at which the problem arises, the appropriate individual–chairperson, dean, vice chancellor, provost, or chancellor–meets with the aggrieved faculty member and attempts to reach a mutually acceptable resolution. This process may necessitate informal discussions with other members of the faculty.

• During the attempts at informal resolution, the aggrieved faculty member need not file a written grievance.

• Any informal resolution shall be mutually agreed upon by the aggrieved faculty member and the official involved.

• Every informal resolution shall be reduced to writing and signed by the faculty member and the administrator involved; no further action shall be taken on the matter.

• One copy of the signed document shall be retained by the administrator and one given to the faculty member.

No Informal Resolution.

Request for Hearing.

If an informal resolution cannot be reached, the aggrieved faculty member may request a hearing from the Faculty Mediation Subcommittee.

• A request for a hearing on a grievance shall be in writing and addressed to the chairperson of the Faculty Mediation Subcommittee.

• The aggrieved faculty member shall provide the full particulars of the grievance.

• Any request for a hearing on a grievance shall be honored.

• No faculty member is entitled to more than 1 hearing on any single grievance.

No Hearing Requested.

If the faculty member does not request a hearing, the grievance is considered dropped and the matter permanently closed.

HEARINGS.

Required Action.

Notification.

Whenever the chairperson of the Faculty Mediation Subcommittee receives a request for a hearing from a faculty member, the chairperson shall

• provide written notification to the vice chancellor so System legal counsel may be advised a case is pending;

• begin a file of all correspondence concerning the matter, which will be passed on to the chairperson of the hearing committee;

• provide written notification to the aggrieved faculty member, the individual(s) against whom the grievance is filed, the aggrieved faculty member’s department chairperson and dean (or vice chancellor, if appropriate), the provost, and the chancellor that an investigation is in progress; and

• provide copies of all correspondence to the

o aggrieved faculty member;

o individual(s) against whom the grievance is filed; and

o hearing committee members.

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 Faculty Mediation Subcommittee. There will be broad representation from the university but not necessarily a member from each college.

• Normally, at least 3 of the appointed members shall have had either

o previous experience as a member of an appeals hearing committee under either UWSP 3.08, 308m, 4.04, 5.12, 6.01, 6.02, 10.04, 11.04 (see 4A.2), or other similar appeal proceeding, or

o orientation and training for a hearing procedure.

• One member, who normally shall have had previous experience as a member of an appeals hearing committee under either UWSP 3.08, 308m, 4.04, 5.12, 6.01, 6.02, 10.04, 11.04 (see 4A.2), or other similar appeal proceeding, shall be designated as the chairperson of the committee.

• No individual who was involved in the action or behavior leading to the grievance, or who was involved in an investigation of the grievance, or who is a material witness, or who is a member of the same department as the aggrieved faculty member, or of the same department as the individual(s) against whom the grievance was filed, may serve on the hearing committee.

• The chairperson of the Faculty Mediation Subcommittee, if otherwise qualified, may serve as 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 the parties to the process.

o Normally, this will be accomplished by informal contact with the proposed members and the parties to the process 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 faculty member has the unrestricted right to challenge and remove 1 member from the hearing committee.

• The decision on other challenges to committee members is made by the committee, excluding the member under challenge.

• If members are disqualified or disqualify themselves, the remaining members consult with the chairperson of the Faculty 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.

Notice.

The faculty member requesting a hearing and the individual(s) against whom the grievance was filed shall receive written notice of the hearing and of the specific allegations of the grievance, 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 6/UWSP 6.02 (see 4A.2), these policies and procedures, and the guidelines for hearings on grievances which may be found in the following subsection or requested from the chairperson of the Faculty Mediation Subcommittee;

• establish appropriate communication with the chancellor, provost, aggrieved faculty member, individual(s) against whom the grievance was filed, and the aggrieved faculty member’s department chairperson and dean (or vice chancellor), and keep each informed of the proceedings in the hearing;

• keep records of all correspondence among all the principals from the initiation of the request for hearing through the conclusion of the hearing;

• 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, and provide notices to conform with the Open Meetings Law;

• prepare a summary of the evidence and the written report of the commit-tee’s findings and recommendations and transmit these materials to the aggrieved faculty member, the individual(s) against whom the grievance was filed, and to the chancellor, and send copies of the report to the faculty member’s department chairperson and dean (or vice chancellor), and to 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 aggrieved faculty member, the individual(s) against whom the grievance was filed, the chancellor, the provost, the faculty member’s department chairperson and dean (or vice chancellor), 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 shall 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;

NOTE. The decision on whether to grant a request from a faculty member for an open evidentiary meeting lies solely with the hearing committee.

o of whether any party has requested an open evidentiary hearing, and if so that one of the first orders of business will be a vote by the committee on whether to grant the request or move into closed session;

o that both parties have a right to copies of all documentary evidence relevant to the hearing;

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 will be granted to enable either party to investigate evidence as to which a valid claim of surprise is made;

o that the burden of proof is on the grievant;

o that the aggrieved faculty member has the right to a verbatim record of the hearing, which may be a sound recording, at no cost;

o that if the aggrieved faculty member is not tenured and proceedings are not concluded before the expiration of the faculty member’s appointment, the proceedings will terminate at the normal expiration of the appointment unless the faculty member sends a written request to the chairperson of the Faculty Mediation Subcommittee that the proceedings be carried to their conclusion;

o that if the aggrieved faculty member is tenured and proceedings are not concluded before the faculty member’s retirement or resignation, the proceedings will terminate upon the faculty member’s retirement or resignation unless the faculty member sends a written request to the chairperson of the Faculty Mediation Subcommittee that the proceedings be carried to their conclusion;

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 will give a written statement of its findings and recommendations to the aggrieved faculty member, the individual against whom the grievance was filed, the chancellor, the provost, and the faculty member’s department chairperson and dean (or vice chancellor);

o that the faculty member’s and the chancellor’s copies will be accompanied by both a verbatim record of the hearing and a summary of the evidence, unless the faculty member is represented by counsel, in which case the verbatim record and summary will 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 parties) and shall indicate whether the meetings will be open or closed.

Confidentiality.

Committee.

All matters related to 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 faculty governance requirements.

Documents.

Following the conclusion of all deliberations and the submittal of the hearing committee’s report, the chairperson will collect all drafts and other documents related to the hearing, except the report, from the members of the committee, from any appointed secretary, and from all other parties except the aggrieved faculty member and the faculty 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 process consists of two parts, an evidentiary hearing and a deliberative meeting.

Evidentiary Hearing.

The purpose of the evidentiary hearing is to determine the facts of the situation. Both parties may provide evidence at the evidentiary hearing and both parties have 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 burden of proof is on the grievant. The hearing committee makes a verbatim record of the hearing.

Deliberative Meeting.

The purpose of the deliberative meeting is for the hearing committee to reach its conclusions, after which the chairperson of the hearing committee prepares a summary of the evidence and writes 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 within 10 days of 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. Closed meetings require a majority vote of the hearing committee, by a roll call vote.

NOTE. The decision on whether to grant a request from a faculty member for an open evidentiary hearing lies solely with the hearing committee.

Evidentiary Hearings: Who May Attend/Speak.

Closed Hearings.

If the evidentiary hearing is closed, only parties directly involved in the complaint may attend. Those permitted to attend, who may speak when recognized by the chairperson for that purpose, are:

• members of the hearing committee;

• the aggrieved faculty member;

• the individual(s) against whom the grievance was filed;

• 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 grievance 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 and recommendations.

Procedure for Evidentiary Hearing and Deliberative Meeting.

Introduction.

A copy of these procedures may be requested from the chairperson of the Faculty 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 meeting has been requested; and

o a request for a motion to conduct the meeting in open session, and a vote on the motion; 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 grievant and the grievant’s representative(s), if any.

• Introduction of the individual(s) against whom the grievance was filed and the individual’s representative(s), if any.

• Reading of the grievance (or if more appropriate, a precis) for the record by the chairperson of the hearing committee.

• Presentation of testimony by the grievant or the grievant’s representative but not the testimony of witnesses.

• Questions of the grievant by the individual(s) against whom the grievance was filed or by the individual’s representative.

• Presentation of witnesses on behalf of the grievant.

• Questions of the grievant’s witnesses by the individual against whom the grievance was filed or by the individual’s representative.

• Rebuttal questions of witnesses by the grievant or the grievant’s representative.

• Presentation of testimony by the individual(s) against whom the grievance was filed or by the individual’s representative, but not the testimony of witnesses.

• Questions of the individual against whom the grievance was filed by the aggrieved faculty member or the faculty member’s representative.

• Presentation of witnesses on behalf of the individual against whom the grievance was filed.

• Questions of these witnesses by the grievant or the grievant’s representative.

• Rebuttal questions of any of these witnesses by the individual against whom the grievance was filed or by the individual’s representative.

• Questions of witnesses for both parties by members of the hearing committee.

• Presentation by any witnesses who may have been called by the hearing committee and questions of these witnesses by members of the hearing committee.

• Questions of committee witnesses by the individual against whom the grievance was filed or by the individual’s representative.

• Questions of committee witnesses by the grievant or the grievant’s representative.

• Additional questions, if any, of witnesses by members of the hearing committee.

• Rebuttal or closing comments by the individual against whom the grievance was filed or by the individual’s representative.

• Rebuttal or closing comments by the grievant or the grievant’s representative.

• Questions of the grievant by members of the hearing committee.

• Questions by members of the hearing committee of the individual against whom the grievance was filed.

• Additional questions, if any, of the grievant (or the individual against whom the grievance was filed) by members of the hearing committee.

• 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.

Deliberative Meeting.

The hearing committee deliberates on the hearing and writes a summary of the evidence and a report which includes the findings and recommendations of the committee.

Findings.

A finding that the facts are as stated in the grievance is not in itself enough to sustain the grievance. The committee must be convinced that the evidence shows that harm has accrued to the grievant.

Burden of Proof.

The burden of proof is on the grievant to show that harm has accrued to the grievant.

Validity of Grievance.

Decisions on the validity of the grievance 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.

Recommendations.

The committee’s report and recommendations, which includes support for the recommendations, are sent to the parties as soon as feasible but not later than 10 days following the conclusion of the deliberative session(s). The committee recommends either that:

• the grievance or part(s) of the grievance be upheld, and includes recommendations of appropriate action to remedy the situation; or

• the grievance be denied.

Report.

At an appropriate time in the deliberations, the chairperson recesses the meeting and prepares a summary of the evidence and a draft report. The draft is circulated among the members, after which the committee reconvenes to review the draft and make appropriate modifications. After the report has been adopted by the hearing committee, each member of the committee signs the report or files a dissent.

• The report shall be adopted by a majority of the members of the hearing committee. The vote shall be a roll call vote, which shall be recorded.

• The report shall be distributed not later than 10 days following the close of deliberations.

• The chairperson provides a verbatim record of the hearing, a summary of the evidence, and a copy of the report to both the grievant and the chancellor, and a copy each of the report to the individual against whom the grievance was filed, the grievant’s department chairperson and dean (or vice chancellor), and the provost.

Chancellor’s Action.

The recommendations of the hearing committee become the decision of the chancellor within 30 days of the receipt of the committee’s report by the chancellor unless the chancellor modifies the recommendations.

• If the chancellor contemplates a decision substantially different from the recommendations of the committee, the chancellor shall afford the committee an opportunity to discuss the report and the chancellor’s proposed decision before written notification of decision to the grievant.

• The chancellor sends written notification of decision to the grievant and the chairperson of the hearing committee within 30 days of receipt of the report of the committee.

Possible Board Action.

The decision of the chancellor is final except that the Board may, at the written request of the grievant or the hearing committee, and at its option, grant a review on the record.