Appeal Rights – Highlights and links.   -    Private

 

WI 36.01(2) states “Basic to every purpose of the system is the search for truth.”

 

  Wisconsin 36.09(1)(f) states “The board shall delegate to each chancellor the necessary authority for the administration and operation of the institution within the policies and guidelines established by the board. The board may also delegate or rescind other authority to chancellors, committees of the board, administrative officers, members of the faculty and students or such other groups as it deems appropriate. 

So, I’d paraphrase this to mean that Chancellor Shields only has authority from the board if he acts within the policies and guidelines established by the board.  He doesn’t have authority to act outside those policies and guidelines.  So, if he violates a policy he has no authority, right?  Hmmm.   He acted outside the policies and guidelines when he issued the statement of charges to Dr. Burton on 3/31/17 because he didn’t include appeal procedures.  Does that mean he didn’t have the authority to issue that statement of charges?   Hmmm.  Maybe that is why he doesn’t seem to care about all the other policies that have been violated.  He knows he is acting without authority so why bother to try to pretend to follow the rules?   Hmmm.   He seems to be trying to get as many other people as possible to lie for him.  I think he is using the hearing panel as human shields.   He seems hell bent on making Sabina so miserable she will leave so he won’t need to send this $&!# sandwich up to the Board of Regents.  He seems to be trying to get Sabina to become too ill to continue. 

 

 

UWS 4:  http://docs.legis.wisconsin.gov/code/admin_code/uws/4.pdf

 

UWS  4.01 Dismissal for cause.  (1) “Any faculty member having tenure may be dismissed only by the board and only for just cause and  only  after  due  notice  and  hearing.”

 

(2) “A faculty member is entitled to enjoy and exercise all the rights and privileges of a United States citizen, and the rights and privileges of academic freedom as they are generally understood in the academic community.” 

 

This policy shall be observed in determining whether or not just cause for dismissal exists.  The burden of proof of the existence of just cause for a dismissal is on the administration.

 

 4.015 Definitions:  (4) “Consult”  or  “consulting”  means  thoroughly  reviewing and discussing the relevant facts and discretionary issues.  (This applies to Chancellor Shields’ “consultation” with the Executive Committee in his decision to Suspend Dr. Burton)

 

UWS 4.02(1) says “Whenever the chancellor of an institution within the University of Wisconsin system receives a complaint against a faculty member which he or she deems substantial and which, if true, might lead to dismissal under s. UWS 4.01, the chancellor, or designee, shall … offer to discuss the matter informally with the faculty member….  A faculty member may be dismissed only after receipt of a written statement of specific charges from the chancellor as the chief administrative officer of the institution and, if a hearing is requested by the faculty member, in accordance with the provisions of this chapter.

 

UWS 4.02(2) says “Any formal statement of specific charges for dismissal sent to a faculty member shall be accompanied by a statement of the appeal procedures available to the faculty member.”

 

Attorney Lattis argued at one point in the hearing of 9-19-17 that those appeal procedures were provided to Sabina earlier but they were not.  Chancellor Shields sent Dr. Burton the UWS 4 “PROCEDURES FOR DISMISSAL” with his suspension letter dated Jan 3, 2017.  He did not send appeal procedures.  (Chancellor-Suspends-Burton-1-3-17),    (Rebuttal-Shields Suspension-1-4-17).

 

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The University of Wisconsin System UPS OPERATIONAL POLICY  - GEN 14 States:

Just Cause” means a standard that is applied to determine the appropriateness of a disciplinary action.  The elements of determining whether just cause exists are:

          Whether the employee had notice of workplace expectations and potential consequences if those expectations were not met;

          Whether the workplace expectations were reasonably related to business efficiency and performance the employer might reasonably expect from the employee;

         Whether an investigation was undertaken by the employer before discipline or discharge to determine whether the employee violated expectations;

         Whether the investigation was conducted fairly and objectively;

         Whether the employer obtained substantial evidence of the employee's guilt;

         Whether workplace expectations were applied fairly and without discrimination; and

         Whether the degree of discipline imposed reasonably related to the seriousness of the employee's offense and the employee's past record.

These standards are addressed in a separate document (JustCause-Standards)

Dr. Burton did not do anything that would warrant dismissal.   The charges, even if they were true, are not substantial and certainly do not rise to the level of just cause for dismissal.

 

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943.39 Fraudulent writings. Whoever, with intent to injure or defraud, does any of the following is guilty of a Class H felony:

(1) Being a director, officer, manager, agent or employee of any corporation or limited liability company falsifies any record, account or other document belonging to that corporation or limited liability company by alteration, false entry or omission, or makes, circulates or publishes any written statement regarding the corporation or limited liability company which he or she knows is false; or

(2) By means of deceit obtains a signature to a writing which is the subject of forgery under s. 943.38 (1); or

(3) Makes a false written statement with knowledge that it is false and with intent that it shall ultimately appear to have been signed under oath.

 

943.38 Forgery.

(1) Whoever with intent to defraud falsely makes or alters a writing or object of any of the following kinds so that it purports to have been made by another, or at another time, or with different provisions, or by authority of one who did not give such authority, is guilty of a Class H felony:

 

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UWS 3.08 UWS 3.08Appeal of a nonrenewal decision.

 

(1) The faculty and chancellor of each institution, after consultation with appropriate students, shall establish rules and procedures for the appeal of a nonrenewal decision. Such rules and procedures shall provide for the review of a nonrenewal decision by an appropriate standing faculty committee upon written appeal by the faculty member concerned within 20 days of notice that the reconsideration has affirmed the nonrenewal decision (25 days if notice is by first class mail and publication). Such review shall be held not later than 20 days after the request, except that this time limit may be enlarged by mutual consent of the parties, or by order of the review committee. The faculty member shall be given at least 10 days notice of such review. The burden of proof in such an appeal shall be on the faculty member, and the scope of the review shall be limited to the question of whether the decision was based in any significant degree upon one or more of the following factors, with material prejudice to the individual:

(a) Conduct, expressions, or beliefs which are constitutionally protected, or protected by the principles of academic freedom, or

(b) Factors proscribed by applicable state or federal law regarding fair employment practices, or

(c) Improper consideration of qualifications for reappointment or renewal. For purposes of this section, “improper consideration" shall be deemed to have been given to the qualifications of a faculty member in question if material prejudice resulted because of any of the following:

1. The procedures required by rules of the faculty or board were not followed, or

2. Available data bearing materially on the quality of performance were not considered, or

3. Unfounded, arbitrary or irrelevant assumptions of fact were made about work or conduct.

(2) The appeals committee shall report on the validity of the appeal to the body or official making the nonrenewal decision and to the appropriate dean and the chancellor.

(3) Such a report may include remedies which may, without limitation because of enumeration, take the form of a reconsideration by the decision maker, a reconsideration by the decision maker under instructions from the committee, or a recommendation to the next higher appointing level. Cases shall be remanded for reconsideration by the decision maker in all instances unless the appeals committee specifically finds that such a remand would serve no useful purpose. The appeals committee shall retain jurisdiction during the pendency of any reconsideration. The decision of the chancellor will be final on such matters.

 

 

 

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 Faculty Handbook 2016:   (also Faculty Handbook 2017) (Faculty_Bylaws-2017)

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Key points from (Faculty_Personnel_Policies-Procedures-2017)

                                                                                                                                         

6.3.12.1  -  UWS 3.08 Appeal of a nonrenewal decision

…. The faculty member shall be given at least 10 days notice of such review.

 

The scope of the review shall be limited to the question of whether the decision was based in any significant degree upon one or more of the following factors, with material prejudice to the individual:

 

(a) Conduct, expressions, or beliefs which are constitutionally protected, or protected by

the principles of academic freedom, or

(b) Factors proscribed by applicable state or federal law regarding fair employment

practices, or

(c) Improper consideration of qualifications for reappointment or renewal. For

purposes of this section, “improper consideration” shall be deemed to have been given to

the qualifications of a faculty member in question if material prejudice resulted because

of any of the following:

1. The procedures required by rules of the faculty or board were not followed, or

3. Unfounded, arbitrary or irrelevant assumptions of fact were made about work

or conduct.  (same thing is listed in 6.3.12.3 section 3 -  scope of appeals)

 

This includes the Letters of Direction in the scope of the hearing.  

 

6.3.12.3 Appeal of Nonrenewal or Denial of Tenure 

 

 

Section 2 Counsel

A faculty member contemplating an appeal may wish to seek advice from senior faculty or legal

counsel familiar with the policies and procedures. The right to invite and seek council from an

individual (or individuals) of the faculty member’s choice during any hearing is guaranteed under

these procedures.

 

Section 3

Scope of Appeals

The scope of the appeal shall be limited to whether material prejudice to the individual resulted

because the decision was based in any significant degree upon:

 

· conduct, expressions, or beliefs which are constitutionally protected, or protected by the

principles of academic freedom; or

· factors proscribed by applicable state or federal law regarding fair employment practices;

or

· improper consideration of qualifications, which shall be deemed to have occurred if

material prejudice resulted because:

o procedures required by the faculty or Board were not followed; or

o available data bearing materially on the quality of performance were not

considered; or

o unfounded, arbitrary, or irrelevant assumptions of fact were made about work or

conduct (see UWS 3.08 in section 6.3.12.1).

 

(This brings the Letters of direction into the scope because:  1) The Chancellor based his statement of charges on the LODs, 2) The administration did not follow policy in the handling of the LODs and grievance requests 3) The LOD contains unfounded, arbitrary and irrelevant assumptions of fact.)

 

Section 4 Time Limits

Termination of Appeal

Failure to meet any time limits established by these procedures will likely end the proceedings.

A faculty member considering an appeal of nonrenewal or denial of tenure is urged to review these procedures and to act promptly.

 

(The administration failed to meet the 20 day deadline but the proceedings continued.  Why is that?)

 

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.

 

Section 5 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 the body’s subunits unless the rules of the parent body specifically state otherwise.

 

Right to Open Meeting

A probationary faculty member has the right to request and receive an open meeting for any

meeting of a department, or unit, or subunit involving an evidentiary hearing or final action on

consideration of tenure for that individual, even when departmental policies provide that subunit

or committee meetings be restricted to members of the subunit or committee.

 

Section 6 Rules and Procedures

 

Filing an appeal

Upon receipt of written notification that nonrenewal or denial of tenure at the completion of the maximum probationary period was affirmed in the reconsideration, the faculty member has 20 calendar days in which to request a hearing by the Appeals Commission (25 calendar days if notice is by first class mail and publication). An aggrieved faculty member who does not exercise his or her right to reconsideration still retains the right to appeal a nonrenewal or denial of tenure….

 

The request must be in writing and addressed to the chairperson or convener of the Appeals Commission.

 

Appointment of an Appeal Panel

An appeal panel of five members shall be selected by the Appeals Commission to hear a

particular case (Faculty_Personnel_Policies-Procedures-2017 – pg 103), (see section 4.2 “The Faculty Bylaws” of this handbook; specifically, Part II,

Article III, Section 6 “Appeals Commission” of the Faculty Bylaws).  

 

 

 

 

 

 

Appeal Panel Chairperson’s Responsibilities

Once the appeal panel is appointed, the chairperson of the panel assumes responsibility for the

appeal process. The chairperson must:

· conduct the hearing under the provisions of UWS 3.08, these policies and procedures,

and the guidelines for appeal hearings (which may be found in section 7 of 6.3.12.3);  · establish appropriate communication with the appellant, the chairperson of the

appellant’s renewal and tenure review body, the department chairperson, the dean, the

provost, and the chancellor, and keep each informed of the proceedings in the appeal;

· keep records of all correspondence among all the principals from the initiation of the

appeal through its conclusion;

· appoint a secretary for the appeal panel 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

panel formulates its findings and recommendations;

· distribute materials as necessary;

· prepare the written report of the panel’s findings and recommendations and transmit the

panel’s report to the chancellor and other appropriate parties;

· send a copy of the appeal hearing procedures with each written notification of the

hearing, and send written notification (see below) of the appeal hearing to the appellant,

the decision-maker(s), other involved individuals, and witnesses asked to appear on

behalf of the parties or called by the appeal panel.

 

 

Written notification of the appeal hearing must 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;

o that normally, by a vote of the appeal panel, the evidentiary hearing and

the deliberative sessions will be closed but the appellant, upon timely

written request to the chairperson, has the right to request an open

evidentiary meeting. Any such request in the case of an appeal of denial

of tenure shall be honored.

o of whether the evidentiary hearing and the deliberative meeting will be

closed or open;

o that both parties have a right to copies of all documentary evidence

relevant to the appeal;

o that all parties, including witnesses, are expected to provide to the

appeal panel chairperson sufficient copies of their documentary

evidence 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 appeal panel;

o that either party may offer testimony from any source;

o that the appeal panel is not bound by statutory rules of evidence but may

hear testimony having reasonable probative value; (note:  so we can get the LOD discussion in)

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 appellant has the right to a verbatim record of the hearing, which

may be a sound recording, at no cost;

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 four members of the

appeal panel;

o that a quorum for the deliberative sessions consists of four members of the

appeal panel, except that in an emergency, the chairperson may declare a

quorum when only three members are present;

o that the burden of proof as to the validity of the appeal is on the appellant;

and

o that the appeal panel will give written statements of its findings and

recommendations to the chancellor, provost, appropriate dean, department

chairperson, appellant, and decision-maker(s).

 

 

Communication between the appeal panel and the appellant

All communication concerning an appeal by the appellant should be directed to the chair of the

appeal panel and be limited to issues of policy and procedure. The appellant may not seek

general advice or counsel from any member of the appeal panel at any point in the appeal

process.

 

 

Notice

Notices of meetings must be posted in a public forum (without identifying the appellant) and

must indicate whether the meetings will be open or closed.  (Note:  This is not the required notice for Open meetings law.  Find out where the chair will post this and make sure he does so.)

 

 

6.3.12.3 Section 7 Highlights:

 

 

 

Evidentiary and Deliberative Sessions

Each member of the appeal panel must sign the final report or file a dissent. The report will be distributed within 10 days of the close of deliberations.”

 

So, the hearing panel members must sign but investigator Roter didn’t sign the “Roter report.”  This requirement makes the hearing panel more responsible for the “Roter report” than Dr. Roter.    If the panel members don’t receive evidence that the “Roter report” is Dr. Roter’s work, and not a forgery, they must dissent or risk liability for basing their decision on a report that is alleged to be a forgery.  Maybe we should individually sue any hearing panel member who signs a final report recommending Dr. Burton’s dismissal without first receiving verification from Dr. Roter that the “Roter report” is authentic.  I’m convinced the “Roter report” is a forgery.  If I were a hearing panel member I would demand that Dr. Roter, in person, explain the “Roter report’s” inconsistencies before using it as a basis of my decision.    

 

 

 

“If the evidentiary hearing is open, anyone may attend but only those parties directly concerned with the appeal and recognized for the purpose of speaking by the chairperson of the hearing committee are permitted to speak.”

 

Procedure for Evidentiary Hearing and Deliberative Meeting

 

The chairperson of the appeal panel 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.”

 

 

“Findings

As noted in section 3 “Burden of Proof and Scope of Appeals” (see above), a finding that the

facts are as described by the appellant is not, by itself, enough to find that the appeal is valid. The facts must support the contention that at least one of the factors described under UWS 3.08 entered into the decision to a significant degree and with material prejudice to the appellant.

 

The burden of proof is on the appellant to provide evidence that at least one impermissible factor entered into the decision to a significant degree and with material prejudice to the appellant.”

 

This is important.  Dr. Burton only needs to show that one significant impermissible factor entered into the decision to dismiss her.  Easy Peasy, if she gets a fair chance to speak.

 

“Decision Rejected

 

If the committee finds for the appellant, it makes its recommendations for remedy as follows:

 

Recommendations for Remedy

All cases under UWS 3.08 must be remanded for reconsideration by the decision-maker(s)

unless the appeal panel specifically finds that a remand would serve no useful purpose. If the

appeal panel finds a remand would serve no useful purpose, the reasons for this finding must be included in the appeal panel’s final report. 

 

Even if it remands the matter, the appeal panel retains jurisdiction until it is satisfied that the appellant’s rights have not been violated.

 

Possible Remedies for a Nonrenewal

If the committee finds that an appeal of a decision for nonrenewal is valid, possible remedies include, but are not limited to:

 

· reconsideration by the RTRB;

· reconsideration by the RTRB under instructions from the committee; or

· a recommendation to the chancellor.

 

Possible Remedies for a Denial of Tenure.

If the committee finds that an appeal of a denial of tenure is valid, possible remedies include, but are not limited to:

· reconsideration by the RTRB;

· reconsideration by the RTRB under instructions from the committee; or

· The report shall be adopted by a majority of the members of the appeal panel. 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 and a copy of the report to the faculty member, and a copy each of the report to the chancellor, the provost, the

appropriate dean, the department chairperson, and the chairperson of the renewal and

tenure review body.”

 

 

 

6.3.13 Dismissals

“All procedures for dismissal for cause are set forth in UWS 4. The standing committee charged with hearing dismissal cases mandated in UWS 4 shall be the Appeals Commission (see the Faculty Bylaws, Part II, Article III, Section 6).   In a dismissal case, if the chancellor is advised that a faculty member should be suspended from his or her duties, pending the outcome of the case, he or she shall consult the Executive Committee of the Faculty Senate before taking such action (see also section 9.4).”  (note;  Fac Bylaws Pt II, Art III, Sec 9.4 does not seem to exist.) (Faculty Bylaws)

 

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  (Faculty Bylaws, Part II, Article III, Section 6) (pg 15)    (archive)  -  Appeals Commission

 

a.      Responsibilities

 

i.                    Hears any faculty member's appeal of a decision not to renew a probationary member's appointment, or to deny tenure at the completion of the maximum probationary period, made by a department review body, the tenured members of a department or its functional equivalent, or a college RST committee, according to the appeal procedure set forth in the Faculty Bylaws, Part III, Article VIII, Section 3.

 

ii.                  Acts as an appeal body on the request of any faculty member against whom the

Chancellor has filed charges that may lead to dismissal. In such circumstances, the

commission shall act as a hearing agent for the Board of Regents pursuant to Section

227.12 Wis. Stat.,  (read this ) and in accordance with all procedures set forth in UWS 4.

 

b.      Membership

 

i. There shall be nine members on the commission appointed by the Faculty Senate upon recommendation of the Appointments and Elections Committee except that:

1. there shall be no more than one member from any one department,

2. there shall be no member currently serving on any CRST committee,

3. each member shall be appointed to a three year term and a member may serve two consecutive terms, and

4. all members shall be tenured.

 

ii. The Faculty Senate shall maintain a list of alternates to serve as members of the Appeals Commission under the conditions specified in b, iii, 2 below. These alternates shall serve three year terms and may serve consecutive terms unless they become active members of the commission. In this case they may not serve more than two consecutive terms as members or alternates.

 

iii. A panel of five members shall be selected by the Commission to hear a particular case according to the following:

1. No member of the appealing member's department or DRB may serve on the appeal panel for that faculty member.

 

2. …In the case of an appeal of a denial of tenure at the completion of the maximum probationary period, the appealing faculty member shall have the option of disqualifying one member of the commission [sic] from serving on that faculty member's review panel; the tenured members of the department or its functional equivalent shall also have the option of disqualifying one member; and comission [sic] members may disqualify themselves.

 

If fewer than five members remain on the review panel, the Executive Committee of the Faculty Senate shall appoint an alternate or alternates (sufficient in number to make a panel of five) from the list of alternates to be maintained according to b, ii, above.

 

3. In the event that not enough regular members or alternates are able to serve, the Executive Committee of the Faculty Senate shall prepare a list of alternates to be approved by the Faculty Senate.

 

iv. The Appeals Commission shall select its own Chair, and when constituted, each panel

shall select its own Chair.

 

 

 

 

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 (Wisconsin Statute  36(13).

 

36.13 Faculty tenure and probationary appointments.

(1) Definitions. In this section:

(a) "Probationary appointment" means an appointment by the board held by a faculty member during the period which may precede a decision on a tenure appointment.

(b) "Tenure appointment" means an appointment for an unlimited period granted to a ranked faculty member by the board.

 

 (5)Procedural guarantees. Any person having tenure may be dismissed only for just cause and only after due notice and hearing. … The action and decision of the board in such matters shall be final, subject to judicial review under ch. 227. The board and its several faculties shall develop procedures for the notice and hearing which shall be promulgated by rule under ch. 227.

 

36.13(4)(a)(a) Any person who holds a tenure appointment under ch. 36, 1971 stats. and ch. 37, 1971 stats., and related rules on July 9, 1974 shall continue to hold tenure as defined under those chapters and related rules.   (Read Ch 37)

 

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Wis State Statute 37    https://docs.legis.wisconsin.gov/1971/statutes/statutes/37

 

37.09 Objects of state universities. The primary purposes and objects of each state uni-

versity shall be the instruction and training of students in the theory and art of teaching, and

in all various branches that pertain to a good common school education, and in all subjects

needful to qualify for teaching in the public schools, also to give instruction in the funda-

mental laws of the United States and of this state in what regards the rights and duties of

citizens.

 

 

37.31 Teachers employed on probation; tenure; compulsory retirement. (1) (b) The employment of a teacher who has become permanently employed under this section may not be terminated involuntarily, except for cause upon written charges. Within 20 days of receiving the written notice that his employment has been terminated, such permanently

employed teacher may appeal the termination to the board of regents by a written notice to the

president of the board of regents.  The board of regents shall hear the case and provide such

teacher with a written statement as to its decision.

 

 

 

9.03.    CAUSE FOR DISMISSAL. (See UWS 4.01.)  This is UW Madison’s interpretation of “just cause.”
No faculty member shall be subject to dismissal except for just cause, based upon a determination that the faculty member’s conduct directly and substantially affects adversely, to a degree greater than that reserved for disciplinary action, the ability to carry out satisfactorily his/her responsibilities to the university. Examples of conduct that may warrant dismissal include, but are not limited to, fraud or intentional misrepresentation of facts for personal benefit, gross abuse of authority or influence (e.g.,discriminatory or retaliatory actions, particularly where a pattern is evident), or willful and protracted violations of university rules or policies.

 

 

Wis Statute 227.45(5)    statesDocumentary evidence may be received in the form of copies or excerpts, if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original.”

 

 

UWS 4.04 UWS 4.04Hearing. If the faculty member requests a hearing within 20 days of notice of the statement of charges (25 days if notice is by first class mail and publication), such a hearing shall be held not later than 20 days after the request except that this time limit may be enlarged by mutual written consent of the parties, or by order of the hearing committee. The request for a hearing shall be addressed in writing to the chairperson of the standing faculty committee created under s. UWS 4.03.  -  Dr. Burton requested the hearing within 20 days as required but the hearing committee never provided any notification of a decision to enlarge the time limit for the hearing.  Dr. Burton did not consent to an enlargement of the time limit. She would have preferred to begin the hearing sessions in January or February or March or April of 2017 but the administration quietly pushed the hearing off until May 25, 2017 without explanation and in violation of this statute.

 

UWS 4.06(1)(f)  If the faculty hearing committee requests, the chancellor shall provide legal counsel after consulting with the committee concerning its wishes in this regard. The function of legal counsel shall be to advise the committee, consult with them on legal matters, and such other responsibilities as shall be determined by the committee within the provisions of the rules and procedures adopted by the faculty of the institution in establishing the standing faculty committee under s. UWS 4.03;”

 

 

UWS 4.05Adequate due process.

(1) A fair hearing for a faculty member whose dismissal is sought under s. UWS 4.01 shall include the following:

(a) Service of written notice of hearing on the specific charges at least 10 days prior to the hearing;

(b) A right to the names of witnesses and of access to documentary evidence upon the basis of which dismissal is sought; 

(c) A right to be heard in his/her defense; (They had the hearing without Sabina so they violated this one)

(d) A right to an advisor, counsel, or other representatives, and to offer witnesses;

(e) A right to confront and cross-examine adverse witnesses…; (They had the hearing without Sabina so they violated this one too)

(f) A verbatim record of all hearings, which might be a sound recording, provided at no cost;

(g) Written findings of fact and decision based on the hearing record;

(h) Admissibility of evidence governed by s. 227.45 (1) to (4), Stats.

 

 

227.45 (1)  says “The agency or hearing examiner shall admit all testimony having reasonable probative value,”, not just all that can fit in a proscribed time limit; unlimited by time for relevant testimony.

We have a plethora of relevant testimony.  This could take a while. 

 

 

 

UWS 4.06(1)(e)  “The faculty hearing committee shall not be bound by common law or statutory rules of evidence and may admit evidence having reasonable probative value but shall exclude immaterial, irrelevant, or unduly repetitious testimony, and shall give effect to recognized legal privileges;”  This allows the Throop LOD materials to be considered.

 

UWS 4.06(1)(f)  -  “If the faculty hearing committee requests, the chancellor shall provide legal counsel after consulting with the committee concerning its wishes in this regard. The function of legal counsel shall be to advise the committee, consult with them on legal matters, and such other responsibilities as shall be determined by the committee within the provisions of the rules and procedures adopted by the faculty of the institution in establishing the standing faculty committee under s. UWS 4.03;”    Attorney Vaughan is bound to advise the hearing panel “within the provisions of the rules and procedures.”  So, if he advised Susan Hansen to continue with the hearing session on May 25, 2017 then he probably violated some ethics law.  It would be interesting to depose both Vaughan and Hansen to see whether their stories jive.  My guess is Vaughan stood back quietly and let Lattis convince Hansen to take all the liability herself.  If Hansen wants the liability I guess she gets it.  If I were her I’d probably disqualify myself from the hearing panel and avoid getting in any deeper. 

 

UWS 4.06(1)(h)  “If a faculty member whose dismissal is sought has requested a hearing, discontinuance of the proceeding by the institution is deemed a withdrawal of charges and a finding that the charges were without merit;”

 

UWS 4.03   UWS 4.03Standing faculty committee. The faculty of each institution shall provide a standing committee charged with hearing dismissal cases and making recommendations under this chapter. This standing faculty committee shall operate as the hearing agent for the board pursuant to s. 227.46 (4), Stats.”

 

227.46(4)Notwithstanding any other provision of this section, in any contested case, if a majority of the officials of the agency who are to render the final decision have not heard the case or read the record, the decision, if adverse to a party to the proceeding other than the agency itself, shall not be made until a proposed decision is served upon the parties and an opportunity is afforded to each party adversely affected to file objections and present briefs or oral argument to the officials who are to render the decision. Except as provided in s. 227.47 (2), the proposed decision shall contain a statement of the reasons therefor and of each issue of fact or law necessary to the proposed decision, prepared by the hearing examiner or a person who has read the record. The parties by written stipulation may waive compliance with this subsection.”

 

UWS 4.07 UWS 4.07Recommendations: to the chancellor: to the regents.

(1) The faculty hearing committee shall send to the chancellor and to the faculty member concerned, as soon as practicable after conclusion of the hearing, a verbatim record of the testimony and a copy of its report, findings, and recommendations. The committee may determine that while adequate cause for discipline exists, some sanction less severe than dismissal is more appropriate. Within 20 days after receipt of this material the chancellor shall review it and afford the faculty member an opportunity to discuss it. The chancellor shall prepare a written recommendation within 20 days following the meeting with the faculty member, unless his/her proposed recommendation differs substantially from that of the committee. If the chancellor's proposed recommendations differ substantially from those of the faculty hearing committee, the chancellor shall promptly consult the faculty hearing committee and provide the committee with a reasonable opportunity for a written response prior to forwarding his/her recommendation. If the recommendation is for dismissal, the recommendation shall be submitted through the president of the system to the board. A copy of the faculty hearing committee's report and recommendations shall be forwarded through the president of the system to the board along with the chancellor's recommendation. A copy of the chancellor's recommendation shall also be sent to the faculty member concerned and to the faculty committee. For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, or stalking, the complainant shall have all rights provided to the faculty member in this paragraph, including the right to receive a copy of the chancellor's recommendation, except as may be precluded by applicable state or federal law.

(2) Disciplinary action other than dismissal may be taken by the chancellor, after affording the faculty member an opportunity to be heard on the record, except that, upon written request by the faculty member, such action shall be submitted as a recommendation through the president to the board together with a copy of the faculty hearing committee's report and recommendation. For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, or stalking, the complainant shall have all the rights provided to the faculty member in this paragraph.

 

UWS 4.08 UWS 4.08Board review.

(1) If the chancellor recommends dismissal, the board shall review the record before the faculty hearing committee and provide an opportunity for filing exceptions to the recommendations of the hearing committee or chancellor, and for oral arguments, unless the board decides to drop the charges against the faculty member without a hearing or the faculty member elects to waive a hearing. This hearing shall be closed unless the faculty member requests an open hearing (see subch. V of ch. 19, Stats., Open Meeting Law). For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, or stalking, the complainant shall have the same opportunity for filing exceptions to the recommendations of the hearing committee or chancellor, and for oral arguments, as the faculty member.

 

 

Laws applicable to Attorney Vaughan:

 

SCR 20:1.13  (b)If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act in behalf of the organization as determined by applicable law.”

 

It seems to me that Attorney Vaughan knew that Dr. Susan Hansen acted in violation of law by holding the hearing on May 25, 2017 without Dr. Burton in attendance due to severe illness.  I think he knew that doing so might be imputed to the organization.  I think he knew that the matter is probably going to court.  I think he knew that the violation might cause injury to the organization.  He did not refer the matter to higher authority.  I don’t see how it could be in the organization’s best interest to keep this violation secret from upper management.  It seems to me that Attorney Vaughan is in violation of this statute.  Who knows, maybe he did tell the Regents about it.  If so, it is the Regents themselves who are responsible.  I doubt that he told them.

 

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Appeal Rights – Highlights and links.      - Public

 

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This may not apply.  I haven’t found anything in UWS 4 yet that indicates Sabina has these rights but it might help:

227.46Hearing examiners; examination of evidence by agency.

(1) Except as provided under s. 227.43 (1), an agency may designate an official of the agency or an employee on its staff or borrowed from another agency under s. 20.901 or 230.047 as a hearing examiner to preside over any contested case. Subject to rules of the agency, examiners presiding at hearings may:

(a) Administer oaths and affirmations.

(b) Issue subpoenas authorized by law and enforce subpoenas under s. 885.12.

(c) Rule on offers of proof and receive relevant evidence.

(d) Take depositions or have depositions taken when permitted by law.

(e) Regulate the course of the hearing.

(f) Hold conferences for the settlement or simplification of the issues by consent of the parties.

(g) Dispose of procedural requests or similar matters.

(h) Make or recommend findings of fact, conclusions of law and decisions to the extent permitted by law.

227.46(1)(i)

(i) Take other action authorized by agency rule consistent with this chapter.

 

20.901(1)(a)    The state agencies shall cooperate in the performance and execution of state work and shall interchange such data, reports and other information, and, by proper arrangements between the state agencies directly interested, shall interchange such services of employees, or shall so jointly employ or make such assignments of employees as the best interests of the public service require.”

 

 

Due to the confict of interests in this case, and in the interests of the best public service, I request that the appeal panel be selected from outside UW Platteville.  I request , per 227.46 that the appeal panel be staffed by an agency outside of UW Platteville as allowed under s. 20.901 or 230.047.  

 

I further request that a member of another agency be borrowed, under s. 20.901 or 230.047, as a hearing examiner to preside at hearings. 

 

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Key points from Faculty Handbook 2016:   (also Faculty Handbook 2017)  Here is something interesting:  The 2017 faculty handbook has reference to a 300 day window.  This was, of course produced long after the fact.   This shows how the administration alters policy to harass Sabina.  I wouldn’t be at all surprised to later find that the administration pulls out this new policy and applies it to Sabina’s case.   It is new.  It didn’t exist at the time in question.   You can’t just make up rules to hold someone to after the event.  Well, it seems you can if you are in a position of power at UW Platteville (2017 Fac handbook 5.2.III.D).   Reference: (SFDGHP).

 

 

6.3.12.3 Appeal of Nonrenewal or Denial of Tenure

 

 

“Appeal Date

The appeal panel must meet to hear the matter within 20 calendar days of receipt of the request for an appeal, except that this time limit may be extended by mutual consent of the parties or by order of the appeal panel.

 

The appeal panel extended the 20 day deadline without consent by Dr. Burton.

 

6.3.12.3 Section 7 Highlights:

 

Confidentiality

All matters related to the appellant and the appeal are maintained in the strictest confidentiality by appeal panel members, except as may be necessary to meet provisions of the Open Meetings Law or other similar statutory, administrative rule, or faculty governance requirements.

 

Following the conclusion of all deliberations and the submittal of the appeal panel’s report, the chairperson will collect all drafts and other documents related to the appeal from the members of the panel, from any appointed secretary, and from all other parties except the appellant and the appellant’s representative(s). All minutes and materials provided by the parties and not forwarded to the chancellor as a part of the report will be sealed and filed in the office of the chancellor for a period of five years, after which they will be destroyed as permitted under the Public Records Law.   (note:  We should request that the materials be maintained by the Board of Regents since we are accusing the Chancellor of corruption and there is evidence that he has changed documents in the past.  Also, request that Attorney Lattis not have any access whatsoever to the files.  We should provide a list of names who should never be given access.  This may not work.  Probably not worth trying.)

 

 

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(This may not be applicable – check it out.)

Faculty Bylaws, Part III, Article VIII 

 

 

 

 

“Section 2 Rights of Non-Renewed Probationary Faculty, Faculty Denied Tenure at the Completion of the Maximum Probationary Period, and Faculty Terminated Because of Fiscal Emergency 

 

If at any level of review, a decision is made not to renew a probationary faculty member's contract, or to deny tenure at the completion of the maximum probationary period, or to

terminate a faculty member because of fiscal emergency, that faculty member is entitled to:

a.       a notification of the adverse decision and applicable rules and procedures as soon as is practicable,”     - (note:  This doesn’t seem to apply to dismissal of a tenured faculty member but it might?)

 

 

“Section 3

Formal Appeal Procedures

 

After the reconsideration procedures outlined in Section 2 of this article have been followed, a faculty member still aggrieved may initiate a formal appeal procedure. The aggrieved faculty member may then submit a written notice of intent to appeal to the Appeals Commission (cf., the Faculty Bylaws Part II, Article III, Section 6), provided that he or she does so within twenty calendar days of the notice of the last adverse action (25 calendar days if notice is by first class mail or publication). The aggrieved faculty member is advised to prepare documentation in support of the appeal as soon as he or she notifies the Appeals Commission of his or her intent to appeal.

 

The faculty member is also advised to submit all documentation to the chair of the panel

of the Appeals Commission prior to the hearing. The burden of proof in such an appeal shall be on the faculty member.”   

 

(Note:  This is not applicable to Dr. Burton – this para may be for denial of tenure – figure this out.)

 

“The Appeals Commission hearing shall not be held later than twenty calendar days after the faculty member's request for such a hearing, except that this time limit may be extended by mutual consent of the parties, or by order of the Appeals Commission. The faculty member shall be given a ten-calendar-day notice of the time of the hearing.

 

The scope of the review shall be limited to the question of whether the decision was based in any significant degree upon one or more of the following factors, with material prejudice to the individual:

a.       conduct, expressions, or beliefs which are constitutionally protected or protected by the principles of academic freedom,

b.      factors, proscribed by applicable state or federal law, regarding fair employment practices, or

c. improper consideration of qualifications for reappointment or renewal. For purposes of this section, Aimproper [sic] consideration shall be deemed to have been given to the qualifications of a faculty member in question if material prejudice resulted because of any of the following:

i.                    the procedures required by the Faculty Bylaws or the Board of Regents were not followed,

ii.                  available data bearing materially on the quality of performance were not considered,

iii.                unfounded, arbitrary, or irrelevant assumptions of fact were made about work or conduct.

 

If the Appeals Commission finds that the recommendation to deny tenure made by the tenured members of the deparment [sic] or its functional equivalent was affected by impermissible factors as outlined in UWS 3.08, the aggrieved faculty member may then request the appointment of a committee to review the faculty member's record with reference to criteria for tenure as provided in '36(13) Wisconsin Statutes.”

 

(Note; So, Sabina has to request this review.  But this para doesn’t seem to be applicable to Dismissal – figure this out.)

 

“Such a request will be made to the chair of the Faculty Senate.

 

The executive committee of the Faculty Senate, or a committee appointed by the Faculty Senate, shall establish a five member committee which shall have at least three faculty members from UW-Platteville. This committee may also have members appointed from outside the institution. No person may be appointed to this committee unless the person is knowledgeable or experienced in the individual's academic field or in a substantially similar academic field. No member of this committee may be a member of the academic department, or its functional equivalent, that has made the negative recommendation. The committee appointed under this subdivision may not base its tenure recommendation upon impermissible factors, as defined by the Board of Regents rule.    

 

The executive committee shall appoint a chair of the committee. The chair must be a member of the UW-Platteville faculty. This committee shall review the aggrieved faculty member's record and make a recommendation to either grant the faculty member tenure or to not grant the faculty member tenure. The committee shall forward its recommendation to the Chancellor.

 

The Appeals Commission reporting procedures shall be followed as set forth in the Faculty Bylaws, Part III, Article II, Section 6.”

 

 

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Definition of Hostile or Intimidating Behavior – according to UW Madison faculty:

(http://archive.is/rm8Dx)  (https://secfac.wisc.edu/governance/faculty-legislation/ii-332-defining-language-describing-hostile-and-or-intimidating-behavior/).

Applicable excerpts:

 

The policy is not intended to constitute a general civility code addressing ordinary stresses of the workplace, such as occasionally insensitive language or behavior. Nor is it intended to constrain commonly accepted workplace management practices. Nor is it intended to constrain the freedom of faculty to speak out about troubling matters, criticize the administration or university policies, take part in political protest, or to promote and participate in labor unions. Rather, it is intended to address patterns of hostility or intimidation that impede persons from carrying out their duties to the University, ensuring that all, regardless of rank or status, may pursue their work and speak as they see fit.

 

 

 

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https://www.aaup.org/issues/appointments-promotions-discipline/termination-discipline-2004

Says: “The 1940 Statement provides that tenured faculty members whose appointments are terminated for cause will receive at least one year of notice or severance salary unless the grounds for dismissal involve moral turpitude:” 

 

It says “What conduct constitutes just cause should be sensitive to the nature of higher education. Professors Barbara Lee and William Kaplin suggest that "[i]nstitutions should not comfortably settle for the bald adequate-cause standard. Good policy and (especially for public institutions) good law should demand more." Accordingly, such definitions "should be sufficiently clear to guide the decision-makers who will apply them and to forewarn the faculty members who will be subject to them." Kaplin & Lee, The Law of Higher Education 277-78 (3rd ed. Jossey-Bass).” 

 

UWP did not publish just cause standards but the UW System did.  So, the university must use the System standard identified above. 

 

 

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Shields said in the hearing on 9-19-17 that he felt like he was being attacked or something like that.  Early in his testimony.  (find this)  Show that he is not the one on appeal.  He is not being attacked.  It is Sabina who is being unfairly attacked.

 

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Make a list of objections to later use at a 227 hearing.  Example by Chris: http://cchenige.org/UWW/pdf/20170816-Objections.pdf

 

Get Chris’ 227 template mentioned in his email of the 227 process.

 

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Applicable Laws:

 

“943.31 Perjury – (1) Whoever under oath or affirmation orally makes a false material statement which the person does not believe to be true, in any matter, cause, action or proceeding, before any of the following, whether legally constituted or exercising powers as if legally constituted, is guilty of a Class H felony: (d) An administrative agency or arbitrator authorized by statute to determine issues of fact;” and “(2) It is not a defense to a prosecution under this section that the perjured testimony was corrected or retracted.”

 

 

943.39 Fraudulent writings. Whoever, with intent to injure or defraud, does any of the following is guilty of a Class H felony:

(1) Being a director, officer, manager, agent or employee of any corporation or limited liability company falsifies any record, account or other document belonging to that corporation or limited liability company by alteration, false entry or omission, or makes, circulates or publishes any written statement regarding the corporation or limited liability company which he or she knows is false; or

(2) By means of deceit obtains a signature to a writing which is the subject of forgery under s. 943.38 (1); or

(3) Makes a false written statement with knowledge that it is false and with intent that it shall ultimately appear to have been signed under oath.

 

943.38 Forgery.

(1) Whoever with intent to defraud falsely makes or alters a writing or object of any of the following kinds so that it purports to have been made by another, or at another time, or with different provisions, or by authority of one who did not give such authority, is guilty of a Class H felony:

 

943.30  Threats to injure or accuse of crime.

943.30(1) (1) Whoever, either verbally or by any written or printed communication, maliciously …  commits any injury to the person, property, business, profession, calling or trade, or the profits and income of any business, profession, calling or trade of another, with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do any act against the person's will or omit to do any lawful act, is guilty of a Class H felony.

… (4) Whoever violates sub. (1) by attempting to influence the official action of any public officer is guilty of a Class H felony.

 

 

942.01  -  942.01 Defamation.

(1) Whoever with intent to defame communicates any defamatory matter to a 3rd person without the consent of the person defamed is guilty of a Class A misdemeanor.

(2) Defamatory matter is anything which exposes the other to hatred, contempt, ridicule, degradation or disgrace in society or injury in the other's business or occupation.

(3) This section does not apply if the defamatory matter was true and was communicated with good motives and for justifiable ends or if the communication was otherwise privileged.

(4) No person shall be convicted on the basis of an oral communication of defamatory matter except upon the testimony of 2 other persons that they heard and understood the oral statement as defamatory or upon a plea of guilty or no contest.