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.”

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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 Letter 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 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.

 

 

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-2017pg 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.

 

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.