CHAPTER 4C - PERSONNEL RULES
SECTION 7 - PROCEDURES FOR HEARINGS FOR FACULTY ON COMPLAINTS OF MISCONDUCT UNDER UWSP 6.01
(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.
Coverage Comprehensive.
With the single exception of allegations of misconduct which might lead to dismissal, these proceedings apply to all allegations, from what-ever source, concerning conduct by a faculty member which violates university rules or policies, or which adversely affects performance of obligations to the university, and which might provide cause for disciplinary action.
Rights.
The exercise of rights shall not constitute adequate cause for disciplinary action. These are rights guaranteed by:
• the United States Constitution;
• the Constitution of the state of Wisconsin;
• Board action;
• System rules, policies, or procedures;
• the Constitution of the Common Council;
• UWSP rules, policies, or procedures; or
• principles of academic freedom as they are generally understood in higher education.
Student and Peer Evaluations.
Regardless of their content, including specific allegations of inappropriate behavior, neither student nor peer evaluations are complaints under Chapters UWS 6 and UWSP 6 (see 4A.2) or these policies and procedures.
Applicable Documents.
A faculty member against whom a complaint is brought or an individual who is contemplating bringing a complaint against a faculty member is advised to become familiar with:
• Chapters UWSP 1 - 6 (see 4A.2), the institutional faculty personnel rules;
• departmental personnel rules and procedures;
• appropriate sections of the Wisconsin Administrative Code, the UW System faculty personnel rules; and
• related documents in this handbook.
Counsel.
A faculty member who has been notified that a complaint or allegation of misconduct has been received by the chancellor or a designee 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 complaint 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 hearing 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 complaint, investigation of charges, or taking action on a complaint) 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.
Right to Open Meeting.
Under the provisions of the Open Meetings Law, a faculty member has the right to request and receive an open evidentiary hearing for any meeting of a department or unit or subunit involving consideration of disciplinary action or the investigation of charges against that individual.
NOTE. A meeting with one’s chairperson or an administrator for the purpose of discussion or investigation of a complaint, even where the end result of the discussion or investigation may be a recommendation for disciplinary action or hearing, is not subject to the provisions of the Open Meetings Law: neither a chairperson nor an individual administrator is a “formally constituted subunit.”
Under the Open Meetings Law, even when departmental policies provide that subunit or committee meetings be restricted to members of the subunit or committee, a faculty 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 disciplinary action or the investigation of charges against that individual.
Departmental Policies.
Normally, departmental policies will require a written request for an open meeting reasonably in advance of the meeting.
Definitions.
Misconduct.
Misconduct by a faculty member is action or behavior which violates university rules or policies, or which adversely affects performance of obligations to the university, and which might warrant disciplinary action.
Chancellor’s Designee.
For purposes of complaints under these procedures, the chancellor’s designees shall be the provost/vice chancellor for academic affairs, the vice chancellors for business and student affairs (when persons with faculty appointments report to those individuals), and deans, and for limited purposes delineated below, department chairpersons and the special assistant to the chancellor for affirmative action and equity.
Disciplinary Action.
Disciplinary action means any sanction imposed by the chancellor or an appropriate designee against a faculty member for misconduct. Sanctions include but are not limited to:
• official reprimand;
• reduction in salary (for other than budgetary reasons);
• reduction in rank;
• change in assigned duties; or
• temporary suspension from duties without pay.
Who May Sanction.
No disciplinary sanction may be imposed upon a faculty member by anyone other than the chancellor, provost, vice chancellor, or dean except as specified in the paragraph immediately below.
Chairperson.
A disciplinary action may be included when a written complaint is brought to a department chairperson and, in discussion of that complaint, resolution of the complaint is accomplished by an appropriate response mutually agreed upon by the faculty member and the chairperson.
Informal Resolution.
A written complaint against a faculty member may be resolved informally any time after written notification of the complaint to the faculty member but before the involved administrator’s final decision on the complaint has been mailed to the faculty member.
• An informal resolution consists of an appropriate response, which may include disciplinary action, mutually agreed upon by the faculty member and the administrator 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 involved and one given to the faculty member.
PROCEDURES UPON RECEIPT OF A COMPLAINT.
Informal Complaint: Complainant Does Not Wish to File a Written Complaint.
Appropriate Officers.
If a complaint is made to any officer of the university other than the chancellor, provost/vice chancellor for academic affairs or other vice chancellor, (if appropriate), dean, or department chairperson, that individual shall immediately refer the complainant to the appropriate administrative officer.
Referral.
Normally, all complaints except those involving affirmative action issues and those which might lead to charges for dismissal shall be referred to the department chairperson of the faculty member against whom the complaint is made. (For those members of the faculty holding limited appointments, the complaint normally shall be referred to the faculty member’s immediate supervisor.)
Affirmative Action Issues Involved.
When a complaint concerns affirmative action issues (e.g., sexual harassment, gender discrimination, racial harassment), the individual to whom the complaint is brought
• determines if the complainant only wants to report the incident or wants to file a formal written complaint; and
• consults with the affirmative action officer.
Report Only.
When the complainant wishes only to report an incident, the officer proceeds as with other informal complaints but forwards a written report of the incident to the affirmative action officer.
Record.
The written report is kept in the Affirmative Action and Equity Office and is statistically reported annually under 36.12 (1), Wis. Stats.
Administrative Consultation.
Any officer of the University who receives an informal complaint may consult with appropriate administrative personnel prior to collegial consultation with the faculty member against whom allegations have been made in order to ensure compliance with relevant University policies and procedures.
Collegial Consultation.
When a chairperson (or other appropriate chancellor’s designee under this chapter) receives a complaint, the chairperson shall first ascertain whether the complainant wishes to file a formal, written, signed complaint.
Complainant Decides to File Written Complaint.
If the complainant decides to file a formal written complaint, which must be signed by the complainant, the complaint is handled under procedures for written complaints [below].
No Written Complaint.
Individuals who allege misconduct on the part of a faculty member often do not want to initiate a formal investigation of the matter, but would prefer resolution through informal collegial consultation. While this approach is often possible, it should be noted that there are instances where an informal complaint could result in a formal investigation. Allegations of criminal activity, for example, must be reported to appropriate law enforcement agencies. In addition, as a result of numerous court rulings that have found institutions liable for failing to investigate unwritten allegations of misconduct such as discrimination or harassment, UWSP cannot guarantee that an internal investigation will never be conducted in a specific case. However, every attempt will be made to confine university action to collegial consultation whenever a complaint is made informally.
If the complainant does not wish to file a signed, written complaint, the chairperson shall inform the complainant that:
• whether the matter proceeds beyond the chairperson is at the chairperson’s discretion;
• in the absence of compelling reasons to formally investigate the alleged misconduct, the chairperson will maintain the confidentiality of the complainant and will handle the issue with the faculty member on a collegial, consultative basis;
• if an internal investigation of the alleged misconduct is warranted, the faculty member will be informed of the nature of the allegations and the identity of the complainant;
• for cases handled through collegial consultation, a record of the complaint will be maintained in the chairperson’s files for a period of 12 months;
o If no further complaints of a similar nature have been received by the chairperson by the end of the 12 month period, the record will be destroyed and the issue considered closed.
o If the chairperson receives other complaints of a similar nature during the 12 months, the chairperson may either contact the original complainant and request a signed, written complaint or use the record of the verbal complaint as alleged corroboration of more than one incident.
Formal (Written) Complaints.
Information to Complainants.
Whenever the chancellor or an appropriate designee receives a written complaint against a faculty member, that official shall inform the complainant that the faculty member against whom the allegations have been made must be promptly notified in writing of the allegations and that such notice includes the identity of the complainant. The complainant shall also be informed of the procedures for both informal and formal complaints.
Administrative Consultation.
Any officer of the University who receives a formal written complaint may consult with appropriate administrative personnel prior to sending written notification to the faculty member against whom allegations have been made in order to ensure compliance with relevant University policies and procedures.
Notification to Faculty Required.
Whenever a written complaint which might lead to disciplinary action against a faculty member is brought to the chancellor or a designee, before taking any action other than consulting with appropriate administrative personnel or discussing the allegations with an appropriate designee or the complainant, the individual who receives the complaint or an appropriate designee shall promptly (normally, within 10 working days of receipt of the complaint)
• notify the faculty member in writing of the allegations, identifying the complainant; and
• afford the faculty member the opportunity to respond to the complaint or to meet promptly to discuss the complaint informally.
The administrator’s offer of the opportunity for an informal discussion may be in the notification of the allegations or by telephone. Normally, no meeting with a faculty member on such allegations shall occur before the faculty member has received a written copy of the allegations reasonably in advance of the meeting.
NOTE. A faculty member against whom a complaint is made and who is invited to meet informally on the complaint or to respond to the complaint is advised to consult legal counsel.
• Informal discussion with the chancellor may be advisable but a faculty member is not obligated to meet with the chancellor or a designee.
• If the faculty member decides to meet informally with the chancellor or a designee, the faculty member is advised to bring a representative, which may be legal counsel, to the informal discussion.
Opportunity for Response.
Whenever a written complaint against a faculty member has been received by an appropriate official and the faculty member notified in writing of the complaint, prior to taking further action the administrator shall afford the faculty member an opportunity to respond to the allegations.
Administrative Options.
After meeting with the faculty member informally and reviewing the faculty member’s response, or in the absence of a meeting or response, the official shall either:
• investigate the allegations to determine whether sufficient evidence exists to warrant disciplinary action; or
• refer the complaint to the Faculty Mediation Subcommittee for a hearing.
Insufficient Evidence.
If the administrator finds insufficient evidence of action or behavior which warrants disciplinary action, the complaint is dismissed and the faculty member notified in writing of the dismissal of the complaint.
Copies of the dismissal of charges and of the initial notification of allegations sent to the faculty member are attached to all file copies of the initial complaint.
Cause for Action.
If the administrator finds that sufficient evidence of action or behavior which warrants disciplinary action exists, the administrator shall afford the faculty member an opportunity to discuss the matter.
Mutually Acceptable Response.
The administrator may affect informal resolution through an appropriate response, which may include disciplinary action.
• Any informal resolution shall be mutually agreed upon by the faculty member and the administrator.
• Any informal resolution shall be reduced to writing and signed by the administrator and the faculty member; no further action shall be taken on the matter.
• One copy of the signed document shall be retained by the administrator involved and one given to the faculty member.
Lack of Resolution.
Department Chairperson.
If consultation does not produce a mutually acceptable response, the department chairperson forwards to the appropriate dean (or vice chancellor) a written report of the investigation on the complaint and recommends that the dean (or vice chancellor) either:
• invoke an appropriate disciplinary response, which may be recommended by the affirmative action officer, or
• refer the complaint to the Faculty Mediation Subcommittee for a hearing and recommendation.
Affirmative Action Officer.
If consultation does not produce a mutually acceptable response, the affirmative action officer forwards to the chancellor a written report of the investigation on the complaint and recommends that the chancellor either:
• invoke an appropriate disciplinary response, which may be recommended by the affirmative action officer, or
• refer the complaint to the Faculty Mediation Subcommittee for a hearing and recommendation.
Chancellor, Vice Chancellor, or Dean.
The procedures described here are followed by these officials both when complaints originate with them or are referred to them.
• Disciplinary Response Invoked. If a disciplinary response is invoked, the administrator provides written notification to the faculty member which includes:
o the specific disciplinary sanction;
o notice of the faculty member’s right to a hearing by the Faculty Mediation Subcommittee;
o notice that if the faculty member wants a hearing, the faculty member must provide a written request to the chairperson of the subcommittee within 10 days of receipt of the notification of disciplinary action; and
o notice that failure to request a hearing within 10 days will likely end the opportunity for a hearing.
An administrative decision on a complaint in the absence of a hearing (or on a recommendation from a hearing commit-tee) is final except that the Board may, at its option, grant a request by the faculty member for a review on the record.
• Referral for Hearing. If the complaint is referred to the Faculty Mediation Subcommittee for hearing and recommendation, the administrator sends a copy of the referral and all other pertinent documents and information to the faculty member and to the subcommittee.
Termination of Proceedings.
If a faculty member is notified by the chancellor or a designee of a complaint of alleged misconduct and if the university thereafter discontinues proceedings on the alleged misconduct, the complaint and allegations are deemed to be withdrawn and without merit.
Copies of the statement of discontinuance, which shall include a specific statement that the complaint and allegations are withdrawn and deemed to be without merit, and of the initial notification of allegations sent to the faculty member are attached to all file copies of the initial complaint.
REFERRALS OR REQUESTS FOR HEARING.
Request for Hearing.
A faculty member who receives written notification that an administrator has imposed a disciplinary sanction against the faculty member has 10 days from the receipt of the notification in which to request a hearing by the Faculty Mediation Subcommittee.
Written Request.
The request for hearing shall be in writing and addressed to the chairperson of the subcommittee. Failure to meet the 10-day deadline will likely terminate the opportunity for hearing.
No Hearing Requested.
If a faculty member who receives such notification does not request a hearing with the Faculty Mediation Subcommittee, the action of the administrator is final, except that the Board may, at its option, grant a request by the faculty member for a review on the record.
Required Action.
Notification.
Whenever the chairperson of the Faculty Mediation Subcommittee receives a request for a hearing from a faculty member or a referral from the chancellor or a designee requesting a hearing, 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 faculty member, the faculty member’s department chairperson and dean (or vice chancellor, if appropriate), the provost, and the chancellor that a hearing on a complaint is in progress; and
• provide copies of all correspondence to the:
o faculty member;
o hearing committee members; and
o the administrator to whom the complaint was brought.
Appointment of Hearing Committee.
The chairperson shall appoint a hearing committee of 5 persons, at least 3 of whom shall be members of the Faculty Mediation Subcommittee. There shall 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 a hearing committee under either UWSP 3.08, 3.08m, 4.04, 5.12, 6.01, 6.02, 10.04, 11.04 (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 committee under either UWSP 3.08, 3.08m, 4.04, 5.12, 6.01, 6.02, 10.04, 11.04 (see 4A.2), or other similar hearing, shall be designated as the chairperson of the committee.
• No individual who brought the complaint of misconduct, or who was involved in any investigation by the chancellor or a designee, or who was involved in the action or behavior leading to the complaint, or who participated in drawing up the notification of complaint or of referral, or who is a material witness, or who is a member of the same department as the faculty member against whom the complaint was filed may serve on the hearing committee.
• The chairperson of the Faculty Mediation Subcommittee, if otherwise qualified, may serve either 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 involved in the hearing shall receive written notice of the hearing on the specific allegations of the complaint, and if appropriate, of the disciplinary responses recommended, 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 6.01, (see 4A.2) these policies and procedures, and the guidelines for hearings on complaints 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, the faculty member, the appropriate dean (or vice chancellor) and department chairperson, 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;
• prepare a summary of the evidence and the written report of the commit-tee’s findings and recommendations and transmit these materials to the faculty member, to the administrator involved, 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 faculty member, the administrator involved, the chancellor, the provost, the faculty member’s department chairperson and dean (or vice chancellor), the individual(s) who brought the complaint leading to the charges, 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 but the faculty member, upon timely written request to the chairperson, has the right to request an open evidentiary meeting and any such request shall be honored;
o of the faculty 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 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 of the existence of just cause for disciplinary action is on the administration;
o that the 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 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 chair-person of the Faculty Mediation Subcommittee that the proceedings be carried to their conclusion;
o that if the 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 discontinuance of the proceedings by the university is deemed a withdrawal of the charges and a finding that the charges were without merit;
o that nothing prevents the settlement of the case by mutual agreement of the parties, provided that such settlement is reached prior to a final decision by the involved administrator;
o that any personal notes made during the procedures and retained by a participant are subject to subpoena if the matter 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 faculty member, the administrator involved, the chancellor, the provost, the faculty member’s department chairperson, and the 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 faculty member) and shall indicate whether the meetings will be open or closed.
Confidentiality.
Committee.
All matters related to the faculty 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 faculty 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 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 complaint 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 on the existence of just cause for a disciplinary sanction is on the administration. 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 must 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, unless the chairperson of the hearing committee receives from the faculty member a written request for an open evidentiary hearing, in which case all evidentiary sessions will 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 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 faculty member;
• the administrator bringing the charges on the complaint;
• the individual(s) making the complaint upon which charges were based;
• 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 complaint 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, 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 faculty member and the faculty member’s representative(s), if any.
• Introduction of the involved administrator and the administrator’s representative(s), if any.
• Reading of the charges for the record by a member of the administration or its representative.
• Presentation of the administration’s case, including testimony from the individual(s) making the complaint upon which the charges are based, but not the testimony of other witnesses.
• Questions of the administration or the individual making the complaint by the faculty member or the faculty member’s representative.
• Presentation of witnesses on behalf of the administration.
• Questions of the administration’s witnesses by the faculty member or the faculty member’s representative.
• Rebuttal questions of any of these parties by the administration or its representative.
• Presentation of the faculty member’s case by the faculty member or the faculty member’s representative but not the testimony of witnesses.
• Questions of the faculty member by the administration or its representative.
• Presentation of witnesses on behalf of the faculty member.
• Questions of the faculty member’s witnesses by the administration or its representative.
• Rebuttal questions of any of these parties by the faculty member or the faculty member’s representative.
• Questions of the faculty member’s and the administration’s witnesses 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 administration or its representative.
• Questions of committee witnesses by the faculty member or the faculty member’s representative.
• Additional questions, if any, of witnesses by members of the hearing committee.
• Rebuttal or closing comments by the administration or its representative.
• Rebuttal or closing comments by the faculty member or the faculty member’s representative.
• Questions of the faculty member by members of the hearing committee.
• Questions of the administration by members of the hearing committee.
• Additional questions, if any, of the faculty member (or the administration) 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 will 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 complaint is not in itself enough to recommend disciplinary sanctions.
Cause for Disciplinary Response.
The committee must be convinced that the evidence shows that the faculty member’s conduct violates university rules or policies or substantially adversely affects the performance of obligations to the university, and that the conduct is not constitutionally or otherwise legally or ethically protected.
Burden of Proof.
The burden of proof is on the administration to show that cause exists for any disciplinary sanction.
Validity of Complaint.
Decisions on the validity of the complaint 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 administrator involved and the faculty member as soon as feasible but not later than 10 days following the conclusion of the deliberative session(s). The committee’s recommendations may include but are not limited to a finding that
• the allegations are without merit, and dismissal of the complaint;
• the administration has not met the burden of proof, and withdrawal of the complaint;
• the actions attributed to the faculty member did occur but that cause for discipline does not exist, and dismissal of the complaint;
• the actions of the faculty member were constitutionally or otherwise protected, and the dismissal of the complaint;
• there is insufficient evidence to support the allegations, and withdrawal of the complaint; or
• the evidence supports cause for discipline, and the imposition of a disciplinary sanction, which may include but is not limited to
o official reprimand;
o suspension without pay for a specified period;
o a freeze in salary for a specified period;
o a reduction in salary;
o a reduction in rank;
o reassignment;
o counseling or other similar rehabilitation; and
o appropriate compensatory activities.
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 faculty member and the involved administrator, and a copy each of the report to the chancellor, vice chancellor, the appropriate dean, and the faculty member’s department chairperson.
Administrator’s Action.
The administrator shall afford the faculty member an opportunity to discuss the report within 20 days after receiving it from the committee. The recommendations of the committee become the decision of the administrator within 30 days after the meeting with the faculty member, or in the absence of such meeting, within 40 days of the receipt of the committee’s report by the administrator unless the administrator modifies the recommendations. The administrator may
• invoke a less severe disciplinary sanction than recommended; or
• invoke a more severe disciplinary response than recommended.
Recommendation Not Accepted.
If the administrator contemplates a decision substantially different from the recommendations of the committee, the administrator shall afford the committee an opportunity to discuss the report and the administrator’s proposed decision before written notification of decision to the faculty member. Following the meeting with the committee or in the absence of a meeting, as soon as practicable, but not later than 40 days after receipt of the committee’s initial report, the administrator sends written notification of decision to the faculty member and the chairperson of the hearing committee.
Possible Board Review.
The decision of the administrator shall be final, except that the Board, at the written request of the faculty member and at its option, may grant a review on the record.
Faculty Member Declines to Meet.
Failure of the faculty member to meet with the administrator does not impede or stop the process.
No Double Jeopardy.
After notification to the faculty member by the administrator, the faculty member may not again be placed in jeopardy for the same incident(s) of alleged misconduct.