Time Limits and Just Cause Brief:
Oath or Affirmation:
There does not seem to have been any oath or affirmation administered in any of the three hearings.
According to Wis Stat. 906.03 states: “Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness's conscience and impress the witness's mind with the witness's duty to do so.”
Is this applicable to an appeal hearing? I think so.
WI 36.01(2) states “Basic to every purpose of the system is the search for truth.”
The word “truth” was mentioned only once in the whole hearing (pg14 ln3). This was Atty Lattis’ unsupported and false allegation that Dr. Burton was “untruthful” given in an appeal hearing without any promise of, or request for, truth.
The word “honest” was mentioned in the 5-25-17 hearing five times: honest 67:19, 72:14, 84:25, honestly 66:16, honesty 108:23.
Dr. Strobl said (pg72) “I'll be completely 14 honest, the dean and the -- the then dean -- no,15 she wasn't dean at that time, the Interim Provost, 16 Dean Throop often minimized my concerns, to be 17 completely frank.” She went on to explain that she had been complaining about Sabina and Throop did nothing. This seems to be an affirmation of truth. Therefore, she can be held liable for perjury per these statutes:
https://docs.legis.wisconsin.gov/statutes/statutes/906/03
https://docs.legis.wisconsin.gov/statutes/statutes/946/III/31
Dr. Solar responded to a question with an affirmation of honesty: (pg 108) “Q: Has Sabina ever accused you of being a "liar," with 22 that word? 23 A Yes. She most certainly has. And in all honesty, 24 I'm still trying to figure out exactly what she is 25 referring to.”
This affirmation makes Dr. Solar liable for perjury charges as shown in the above statutes.
There may not be any other statements that could be considered as having been given under oath or affirmation. We should point out to the hearing panel that these are the only known confirmations of honesty in the hearing.
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Time Limits:
Arguments against arbitrary time limits:
Garrett v. Matthews (“after 40 hours of testimony, the hearing committee found…”) https://law.justia.com/cases/federal/district-courts/FSupp/474/594/1964449/
and San Filippo v Bongiovanni (“the evidentiary phase alone consumed 250 hours over 46 days”). https://www.courtlistener.com/opinion/2593736/san-filippo-v-bongiovanni/ https://law.justia.com/cases/federal/district-courts/FSupp/743/327/2593736/
https://law.justia.com/cases/federal/district-courts/FSupp/377/524/2343652/ “Dr. Chung received an eight-day hearing during which he was fully able to cross-examine his accusers, subpoena witnesses, present evidence, and in effect, demand a full accounting from the college as to whether the decision of President Park to fire him was supported.”
(TimeLimits-CaseLaw) –This discusses reasonable amount of time. Addresses arbitrary time limits.
227.45(2) says “All evidence, including records and documents in the possession of the agency or hearing examiner of which the agency or hearing examiner desires to avail himself or herself, shall be duly offered and made a part of the record in the case. Every party shall be afforded adequate opportunity to rebut or offer countervailing evidence.”
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We should challenge their refusal to give us more time. We can cite these cases as reason to be allowed to address all charges regardless of time involved.
Arguments to be allowed to present all evidence and all testimony:
Statutes regarding admission of evidence:
http://docs.legis.wisconsin.gov/code/admin_code/uws/4/05
…which points to:
http://docs.legis.wisconsin.gov/statutes/statutes/227/III/45/1
…which says “hearing examiner shall admit all testimony”, not just all that can fit in a proscribed time limit. Every one of items (1) to (4) assert your rights, unlimited by time.
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Chris Henige says that this is quite useful in understanding the process: http://werc.wi.gov/personnel_appeals/werc_2003_on/pa36758C1.pdf
He also sent this: https://www.uwgb.edu/dutchs/PSEUDOSC/HowNotProtectTenure.HTM
(Roger -Read these)
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Just Cause
Regent Policy Document 20-24 states: “Tenure is the keystone for academic freedom and excellence and is awarded for academic and professional merit. Tenure is an essential part of the guarantee of academic freedom that is necessary for university-based intellectual life to flourish. The grant of indeterminate tenure to faculty members represents an enormous investment of university and societal resources, and those who receive this investment do so only after rigorous review which established that their scholarship, research, teaching and service meet the highest standards and are congruent with the needs of the university. It is therefore expressly recognized that the awarding and continued enjoyment of faculty tenure is of vital importance to the protection of academic freedom and to the overall academic quality of the University of Wisconsin System institutions.”
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.
In the 5-25-17 hearing Atty Lattis told the hearing panel "I remind you again that the standard of just cause for termination of a tenured faculty that the Board of Regents will apply, because it has applied it in every other case, is that the behaviors of the faculty member have impaired the efficiency of the operation of the workplace." (Hearing-5-25-17-Rebuttal).
In the 9-19-17 hearing Lattis re-iterated her claim (AppealHrg-9-19-17-Rebuttal). She seems to indicate that the Board of Regents has used the wrong standard in many other cases. But that seems to conflict with UPS OPERATIONAL POLICY - GEN 14.
Attorney Lattis seems to have blamed the Board of Regents for her faulty advice to the panel. (JustCause-Standards)
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, is UPS OPERATIONAL POLICY - GEN 14 a guideline of the Board? I think so. If so, it seems that the Chancellor, and his agents, must follow this guideline in the appeal process or he/they is/are acting without the Board’s authority.
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(UPSOpsPolicy-Gen0) says “”Just cause” means a standard that is applied to determine the appropriateness of a disciplinary action for an employee with a property right to his/her position. The elements of determining whether just cause exists include proper notice to the employee; a full, fair and objective employer’s investigation, and fair and nondiscriminatory application of the penalty or correction.”
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(SuggestedDefinitions-JustCause-pg2) Also: https://www.uww.edu/Documents/acadaff/SuggestedDefinitionsDraft111315.pdf
Defines “Just Cause” as “Just cause” for dismissal includes, but is not limited to, serious criminal misconduct, as defined in UWS 7.02. (See definition for “Serious Criminal Misconduct”.) “Just cause” for dismissal includes, but is not limited to, serious criminal misconduct, as defined in s. UWS 11.102. (See definition for “Serious Criminal Misconduct” below).
“Serious Criminal Misconduct” means ““
(a) Pleading guilty or no contest to, or being convicted of a felony, in state or federal court, where one or more of the conditions in par. (b), (c), (d) or (e) are present, and the felony involves any of the following:
1. Causing serious physical injury to another person.
2. Creating a serious danger to the personal safety of another person.
3. Sexual assault.
4. Theft, fraud or embezzlement.
5. Criminal damage to property.
6. Stalking or harassment.
(b) A substantial risk to the safety of members of the university community or others is posed.
(c) The university’s ability, or the ability of the faculty member’s colleagues, to fulfill teaching, research or public service missions is seriously impaired.
(d) The faculty member’s fitness or ability to fulfill the duties of his or her position is seriously impaired.
(e) The opportunity of students to learn, do research, or engage in public service is seriously impaired.
NOTE: The definition of serious misconduct in Chapter UWS 11.102 is identical to Chapter UWS 7.03, except the phrases “faculty” and “academic staff”.
Source: Chapter UWS 7.02, Administrative Rules.
Dr. Burton is not being processed under UWS 7 but under UWS 4. So, there is not even an allegation of “serious criminal misconduct” against Dr. Burton.
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Other policy that may apply: (UPS Ops Policy Gen13) – contains some background and reference to Ops Gen Policy 0 and 14.
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Judge Peterson wrote in his decision of 3/18/2016 “Burton thus enjoyed substantial job security.” Lattis’ definition of just cause does not provide substantial job security.
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.
UWS 4.01(2): “…the rights and privileges of academic freedom as they are generally understood in the academic community.” Isn’t UW-Madison a part of the academic community, and a part that is actually “local” and a part of the very UW-System who is trying to fire Sabina? UW Madison’s interpretation of “just cause” is binding on UW Platteville as well.
Chancellor Shields believes firing a tenured faculty member must have extraordinary conduct issues to justify the termination (9-19-17 – hearing transcript pg 60 lines 5 – 9).
Go through the hearing of 9-19-17 transcript and glean anything from Shields’ statements that might be good for the Just Cause discussion.
Private Just Cause Standards arguments: The public arguments are here (JustCause-Standard). The public argument is a diversion from the real arguments below.
UWS 4.015(1) - States: “Clear and convincing evidence" means information that would persuade a reasonable person to have a firm belief that a proposition is more likely true than not true. It is a higher standard of proof than “preponderance of the evidence." The term “clear and convincing evidence” does not appear anywhere else in UWS 4 indicating that this is the default standard. The term “preponderance of the evidence” is used in UWS 4.06(1)(am) which deals with complaints involving sexual harassment, sexual assault, dating violence, domestic violence, or stalking. These offenses have a lower standard of proof. The administration must prove with “clear and convincing evidence” that Dr. Burton did the things alleged and that the things alleged warrant dismissal.
History of this includes:
On 7-1-16 a new UWS 4 became effective: https://docs.legis.wisconsin.gov/code/chr/all/cr_15_061 Changes included addition of a definitions section (UWS 4.015). The definition of “Clear and convincing evidence” was explained and compared to “preponderance of the evidence.” A new subparagraph was added UWS 4.06(1)(am), which explains that the standard of proof shall be preponderance of the evidence for complaints involving sexual harassment, sexual assault, dating violence, domestic violence, or stalking. The fact that these two additions were included in the same revision indicates that they were linked, and that the default standard of proof is “clear and convincing evidence.” The lower standard of proof was incorporated specifically for charges that do not apply to Burton's case. The standard of proof for charges against Burton was "clear and convincing evidence" yet the Board used "preponderance of the evidence," which is a lower standard.
UWS 7.05(8) – States: “The administration or its representatives shall have the burden of proof to show that just cause exists for dismissal under this chapter. The administration must demonstrate by clear and convincing evidence that the faculty member engaged in serious criminal misconduct, as defined in s. UWS 7.02, except in cases involving sexual assault, dating violence, domestic violence, or stalking, in which the evidentiary standard shall be by a preponderance of the evidence.” This chapter deals with dismissing tenured faculty who had already been convicted of a crime. But why would the administration have a higher burden of proof for them than for a faculty member who had not committed a crime? It is obvious that the standard of proof is “clear and convincing evidence” for Dr. Burton too.
Maybe interesting: https://docs.legis.wisconsin.gov/raw/cid/1230030 Senate Bill 719 https://docs.legis.wisconsin.gov/raw/cid/1226775
Just Cause discussion: https://www.osba.org/-/media/Files/Resources/Employee-Management/The-Origin-and-Application-of-Just-Cause.pdf?la=en This is not a Legal definition and it is in Oregon, not Wisconsin. It is just criteria for arbitrators. So, I continue to look for that standard. Safransky was a long time ago. There must be more recent standards.
This may be an appropriate argument: the UW-System’s published standards for university staff (formerly classified staff) combined with the fact that Safransky and Gudlin deal with municipal employees. If Safransky can be applied to faculty, despite the statements in that decision that state that different positions may have different standards, then the UPS GEN 14 can also be applied.
https://law.justia.com/cases/wisconsin/supreme-court/1974/349-6.html - Safransky v. Personnel Board
There does not seem to be a definition of Just Cause in Wisconsin. So now we’re into the “vagueness doctrine”, for which this might be useful, as it deals with civil issues such as employment rather than criminal ones. http://volokh.com/2012/06/21/the-void-for-vagueness-fair-notice-doctrine-and-civil-cases/
The citation starts with “…one appropriate question…” which doesn’t suggest that it is the “only” appropriate question.
And there’s another standard in that same paragraph: “It must also be true that conduct of a municipal employee…in violation of important standards of good order…undermine public confidence…”
A final quote in that same paragraph in Gudlin: “Because arbitrary and capricious action must be avoided, the concept of “cause” should be the more strictly construed the less relevance of the conduct complained of to the performance of duty.” In other words, the less relevant conduct is to assigned duty, the higher the standard must be showing that such conduct is just cause for dismissal. The duties our performance is measured on are teaching, research and service, none of which have to do with collegiality or perceptions of it.
If the first “appropriate question” is applied as the only standard, then it does not account for the fact that a whistleblower’s conduct may affect the efficiency of the group, especially when that group is led by the offenders, and those offenders are “unable to perform” because they’ve been exposed. Surely blowing the whistle cannot be grounds for dismissal of the whistleblower in such a case, or any case.
This standard will be easy to dismantle if we are given the opportunity to do so.
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http://legis.wisconsin.gov/eupdates/Asm89/Motion521.pdf - Senator Harsdorf and Representative Schraa motion. May 29, 2015 a committee of lawmakers approved along party lines a proposal that talked to just cause to lay off a tenured faculty member https://www.nytimes.com/2015/06/05/us/politics/unions-subdued-scott-walker-turns-to-tenure-at-wisconsin-colleges.html
http://legis.wisconsin.gov/eupdates/Asm89/Motion530.pdf - Modification to Motion #521 – 5-29-15
https://budget.wisc.edu/content/uploads/2015/05/UW_omnibus_motion.pdf (pg8 para5). This was later ratified into law (I think).
The motion would modify current law to provide that a faculty member who has been notified of layoff is entitled to a hearing before the faculty hearing committee as to the appropriateness of the decision to layoff that particular individual. … Specify that the question to be considered in the review is whether one or more of the following improper factors entered into the decision to layoff: (a) conduct, expressions, or beliefs on the faculty member’s part 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 selection of the individual to be laid off. Provide that “improper selection” has occurred if material prejudice resulted from any of the following: (a) the procedures required by the Board were not followed; (b) available data bearing materially on the role of the faculty member in the institution were not considered; (c) unfounded or arbitrary assumptions of fact were made; or (d) immaterial or improper factors other than those specified above entered into the decision. Specify that the committee could determine whether one or more of these improper factors entered significantly into and affected the layoff decision on the basis of the evidence presented. Provide that if the committee believes that one or more improper factors may have entered into the layoff decision but is convinced that the same decision would have been reached had the error or errors not occurred, the committee would find the decision to have been proper.
This proposal sets out improper factors for considering layoff of a tenured faculty member for departmental budget changes. This should also apply to any other layoff decision for a tenured faculty member.
Let’s look at these one at a time (go through and enter the lies etc here):
Improper factors that entered into the decision
(a) conduct, expressions, or beliefs on the faculty member’s part which are constitutionally protected, or protected by the principles of academic freedom;
a. Witnesses claim that Dr. Burton wrote threatening emails but her emails were simply communications that are protected by the principles of academic freedom (see exhibits)
b. Dr. Burton did not write anything that her husband wrote. She didn’t tell him what to write either. These were not her actions. He also has a right to free speech.
c. Dr. Burton has the right to audio record open meetings.
d. Chancellor Shields LOD violated Dr. Burton’s rights of academic freedom and freedom of speech
e. Chancellor shields’ order banishing Dr. Burton from campus violated her rights to freedom of assembly, freedom of speech and academic freedom.
f.
(b) factors proscribed by applicable state or federal law regarding fair employment practices; or
a. They lied – extorsion,
b. Forgery – Burke admitted that his report was “edited by a third person” – Roter report is not signed but was presented as hers..
c. They violated law by punishing Dr. Burton for being sick. Discrimination by disability. They were informed that Dr. Burton was sick. Violated ADA law.
d. Failure to allow Dr. Burton to cross-examine witnesses
e. Failure to give Dr. Burton enough time to testify to the charges against her
f. Other similarly situated employees violated rules far more serious than allegations against Dr. Burton but they were not processed for dismissal.
i. Throop – lied under oath about the logo
ii. Throop or Rice lied under oath about reporting cancelled class
iii. Solar excluded Burton from discussion about job description and lied about it
iv. Solar posted arguably racist picture outside his office
v. Dr. Strobl posted Bernie Sanders for president material on/at her office.
vi. Dr. Caywood put student’s graded reports outside his office with names on them
vii. Dr. Fairchild denied Dr. Burton’s requests for grievance hearings
viii. Paul Erickson refused to give Dr. Burton her records in violation of open records law
ix. Etc. etc. etc.
(c) improper selection of the individual to be laid off. – Not applicable to this process- has to do with selection of people to lay off after a department closes etc.
Material prejudice resulted from the following:
(a) the procedures required by the Board were not followed;
a. Failure to provide grievance hearing to address the Throop LOD.
b. Failure to offer an informal meeting. Misrepresentation of events of the matter. No Skype interview was agreed upon. A meeting with the Chancellor’s attorney cannot be considered informal.
c. Failure to provide appeal procedures with the statement of charges, failure to provide them when the oversight was pointed out and misrepresentation of the events of the matter by UWS counsel.
d. Failure to provide a hearing within 20 days or to extend the deadline for the hearing.
e. False appeal procedures were given to the appellant – panel was improperly selected because of this
f. Improper formation of the hearing panel and failure to correct the impropriety after the impropriety was pointed out
g. Dr. Laura Anderson was over-involved in the process of the selection and managing of the hearing panel
h. Chancellor Shields’ suspension of Dr. Burton did not follow the procedures – Did not talk to more than one committee. Did not talk to appropriate committees etc.
(b) available data bearing materially on the role of the faculty member in the institution were not considered;
a. Definition of just cause does not take into consideration that Dr. Burton is a faculty member who warrants academic freedom while Safransky was a municipal employee.
b. The website UniversityCorruption.com contains much to show what really happened. This material is all part of the record and should be considered in this matter.
(c) unfounded or arbitrary assumptions of fact were made; or
a. Strobl said defamatory things about Dr. Burton’s husband without any evidence that have no relevance to Dr. Burton’s hearing but severely influence the panel against her.
b. Strobl said that Burton sent a bunch of emails but there were only a handful of emails that did not support her allegations
c. Fuller said that Burton sent a bunch of emails but there were only a handful of emails that did not support her allegations.
d. The biased Roter report contradicted the statements of the witnesses, who had also been interviewed by Roter. (physical threat)
e.
(d) immaterial or improper factors other than those specified above entered into the decision.
a. Dr. Burton sent a condolence card to Deb Rice but that was presented as a terrible thing by (Strobl or fuller)
b. The panel heard testimony that was way outside the scope of the charges and that were immaterial to the charges and were false without giving the appellant opportunity to cross-examine the witnesses because she was absent due to severe illness. The panel was tainted by this testimony but refused to re-panel to correct the bias that was surely imparted.
Could the committee determine whether one or more of these improper factors entered significantly into and affected the layoff decision on the basis of the evidence presented? I think there is a plethora of very significant factors that would certainly do this.
Does the committee believe that one or more improper factors may have entered into the layoff decision but is convinced that the same decision would have been reached had the error or errors not occurred? Only if they are completely biased.
The panel cannot hope to explain that the decision of the panel would have been to dismiss Dr. Burton if none of these violations had occurred.
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UW Regents events can be seen here: https://www.wisconsin.edu/regents/events/ Maybe we can find minutes to tell who has been fired lately?
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Thursday, July 9, 2015 - President Cross mentioned a Tenure Policy Task Force ; Vice President Behling, was serving as the task force’s chair https://www.wisconsin.edu/regents/download/meeting_materials/2015/july_2015/July-9,-2015-(Thursday)-BOR-Minutes.pdf https://www.wisconsin.edu/regents/task-forces-special-studies/tenure-policy-task-force/
https://www.wisconsin.edu/regents/meetingmaterials/
July 23, 2015 Regent President Regina Millner send a letter to the Tenure Policy Task Force charging them to review the tenure policies. https://www.uwec.edu/upload/ChargeToTenurePolicyTaskForce0715.pdf
Aug 20, 2015 – Tenure policy task force - https://www.uwplatt.edu/files/provost/uw_system_tenure_policy_task_force_8_20_2015_minutes.pdf meeting minutes.
Sept 11, 2015 – tenure minutes https://www.wisconsin.edu/regents/download/meeting_materials/2015/september_2015/September-11,-2015-(Friday)-BOR-Minutes.pdf
Sept 17, 2015 – Tenure policy task force meeting minutes: www.uww.edu/Documents/acadaff/MinutesSeptember172015.pdf Dorothy Farrar Edwards added that prior tenure policy only allowed layoffs for cause or program discontinuation. UW System must align its policies with Act 55.
Oct 9, 2015 – update on tenure task force: https://www.wisconsin.edu/regents/download/meeting_materials/2015/october_2015/October-9,-2015-(Friday)-BOR-Minutes.pdf
Dec 11 – meeting minutes update on task force https://www.wisconsin.edu/regents/download/meeting_materials/2015/december/December-11,-2015-(Friday)-BOR-Minutes.pdf
Feb 4, 2016 – meeting minutes – update - https://www.wisconsin.edu/regents/download/meeting_materials/2016(3)/february/February-4,-2016-(Thursday)-BOR-Minutes.pdf apparently the international media attention caused other schools to try to recruit UW Madison’s best faculty.
Feb 5, 2016 – Tenure policy discussion - https://www.wisconsin.edu/regents/download/meeting_materials/2016(3)/february/February-5,-2016-(Friday)-BOR-Minutes.pdf There was significant Interest in the new policy.
Feb 5, 2016 – Education Committee discussed the Tenure Policy - https://www.wisconsin.edu/regents/download/meeting_materials/2016(3)/february/Education-Committee-Minutes---February-2016.pdf The tenure task force was formed in response to Act 55: https://docs.legis.wisconsin.gov/2015/related/acts/55.pdf (page 278- 279) This shows the standards for just cause. Also: Wis Stat 36.22 - 36.22(8)(d)
On Mar 3, 2016 the Tenure Policy Task Force produced an update: https://www.wisconsin.edu/regents/download/tenure_policy_task_force/Tenure-Policy-Task-Force-Report---03.03.2016.pdf The board required a new policy by April 2016.
Task force directory: https://www.wisconsin.edu/regents/download/tenure_policy_task_force/Tenure-Policy-Task-Force-Members-and-Staff.pdf
Mar 11, 2016 - U of Wisconsin System Board of Regents approves new tenure policies, rejecting a series of proposals that professors said would have protected some of their rights. - https://www.insidehighered.com/news/2016/03/11/u-wisconsin-board-regents-approves-new-tenure-policies-despite-faculty-concerns
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Feb 23, 2018 Article: “Disaster Capitalism Hits Higher Education in Wisconsin” says:
“Recognizing that “the search for truth” can be a complicated pursuit, Chapter 36 linked its lofty mission to iron-clad protections for tenure and academic freedom and affirmed the centrality of democratic governance to these pursuits.” It also says “Strong protections for academic freedom and democratic governance have been foundational to the creation of an internationally venerated university system here.”
https://www.thenation.com/article/disaster-capitalism-hits-higher-education-in-wisconsin/
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Wisconsin Statute 36.22(7)
(b)
A hearing must be requested within 20 days of the receipt by the
faculty member of notification of layoff. The request shall state
with particularity the grounds to be relied upon in establishing the
impropriety of the decision. Relevant information supplementary to
that contained in the notification statement may be requested. The
question to be considered in the review is whether one or more of the
following improper factors entered into the decision to lay off:
1. Conduct, expressions, or beliefs on the faculty member's part that are constitutionally protected, or protected by the principles of academic freedom.
2. Factors proscribed by applicable state or federal law regarding fair employment practices.
- Strobl quit her position and didn’t even come to work. She wasn’t fired or even charged leave.
3. Improper selection of the individual to be laid off.
(c) For purposes of par. (b), “improper selection" has occurred if material prejudice resulted from any of the following:
1. The procedures required by the board were not followed.
<< Clearly they were not. >>
2. Available data bearing materially on the role of the faculty member in the institution were not considered.
<< They didn’t even include Dr. Burton’s rebuttals in the package so clearly this was not done. >>
3. Unfounded or arbitrary assumptions of fact were made.
<< Yep. Totally>>
4. Immaterial or improper factors other than those specified in par. (b) entered into the decision.
<< Totally. Where do we begin? Wow. >>
(d) The committee shall determine whether one or more of the improper factors under par. (b) entered significantly into and affected the layoff decision on the basis of the evidence presented. If the committee believes that one or more improper factors may have entered into the layoff decision but is convinced that the same decision would have been reached had the error or errors not occurred, the committee shall find the layoff decision to have been proper. The committee shall report its findings and recommendations to the chancellor and 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.
In the 5-25-17 hearing Atty Lattis told the hearing panel "I remind you again that the standard of just cause for termination of a tenured faculty that the Board of Regents will apply, because it has applied it in every other case, is that the behaviors of the faculty member have impaired the efficiency of the operation of the workplace." (Hearing-5-25-17-Rebuttal).
In the 9-19-17 hearing Lattis re-iterated her claim (AppealHrg-9-19-17-Rebuttal). She seems to indicate that the Board of Regents has used the wrong standard in many other cases. But that seems to conflict with UPS OPERATIONAL POLICY - GEN 14.
Attorney Lattis seems to have blamed the Board of Regents for her faulty advice to the panel. (JustCause-Standards)
The elements of the charges against Dr. Burton do not rise to just cause as explained below:
· Whether the employee had notice of workplace expectations and potential consequences if those expectations were not met;
o Throop Letter of direction –
§ Did not address current charges
§ Burton did not violate the LOD
§ Burton was charged for following Throop’s LOD #1, in regards to a complaint about Dr. Nemmetz.
o Chancellor Letter of direction –
§ did not address current charges
§ Burton did not violate the LOD
o Mandatory communication training –
§ Mandated multiple times but was never conducted
o Nobody ever asked, or demanded, that Dr. Burton remove any audios from the website universitycorruption.com. She was not given opportunity to correct the perceived violation but learned about it two weeks after the complaint was given to the Chancellor.
· Whether the workplace expectations were reasonably related to business efficiency and performance the employer might reasonably expect from the employee;
o Throop LOD –fails this test (House sitting)
o Throop LOD was never addressed in requested grievance hearing.
o Burton stated that she “did not accept” the LOD because - Throop violated due process in writing them.
o Throop knew Burton would convince a reasonable grievance panel so she denied Burton the requested, and mandatory, hearing in violation of policy.
o There is no policy governing use of Letters of Direction. This seems to be an invention of Dr. Throop for quelling faculty members who support students’ rights.
· Whether an investigation was undertaken by the employer before discipline or discharge to determine whether the employee violated expectations;
o Investigations were undertaken for all charges against Dr. Burton immediately but no investigations were ever undertaken for the charges Dr. Burton levied against others.
§ Dr. Throop filed a UWS ch 6 charge on Jan 5, 2015 (two weeks after Throop falsely accused Burton of cancelling class).
· An investigation was immediately conducted and the results of the investigation were withheld from Dr. Burton for a year.
· Charges were dropped without explanation
§ Deb Rice filed a complaint against Dr. Burton on 8/8/16 just after Dr. Burton asked for a grievance against Rice.
· An investigation into Dr. Burton was ordered immediately
· Dr. Burton’s grievance against Rice was denied on invalid grounds and in violation of policy.
· Whether the investigation was conducted fairly and objectively;
o The “Roter report” investigation was circumscribed by including only interviewees of whom Dr. Burton had filed previous complaints.
o The investigation report delivered by Chancellor Shields, whom Dr. Burton had accused of corruption, were biased and full of inaccuracies, misleading statements, false statements and opinions rather than facts only.
o The investigation report seems to have been “edited by a third person.” So, it appears that the “Roter report” was actually, written by someone other than the person who performed the investigation.
§ 943.39 Fraudulent writings. Whoever, with intent to injure or defraud, does any of the following is guilty of a Class H felony:
· Dr. Roter refused to confirm the authenticity of the “Roter report.” It is not signed.
· (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;
§ 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:
· Whether the employer obtained substantial evidence of the employee's guilt;
o Even with the biased investigation report Chancellor Shields felt compelled to add more to his statement of charges indicating, with no evidence, that Dr. Burton had talked about her grievances in her classes.
§ This indicates that he knew there was not enough in the investigation report to amount to due cause. He needed more so he added something that was not in the complaint not in the investigation report and not true.
o None of the evidence indicates that Dr. Burton did anything wrong.
o Vague twists of facts is the only thing that implicates Dr. Burton in any wrongdoing. Dr. Burton effectively rebuts all charges.
· Whether workplace expectations were applied fairly and without discrimination; and
o Only two faculty members to have received a letter of direction. Throop was forced to withdraw her LOD to the other faculty member.
o No other member of LAE was held to the discriminatory requirements of the LODs.
· Whether the degree of discipline imposed reasonably related to the seriousness of the employee's offense and the employee's past record.
o No other employee was reprimanded for “house sitting” charges.
o No other employee has been processed for dismissal for similar non-violations.
o The burden of proof is on the administration and they have failed to provide evidence that Dr. Burton violated any policies, laws or rules including the discriminatory LODs.
o Chancellor Shields wrote Dr. Burton a letter of appreciation in April 2012 (Shields-congratsSabina-4-30-12). This letter was removed from Dr. Burton’s personnel file and replaced by bogus charges and letters of direction that falsely make her service seem terrible. Dr. Burton asked for her rebuttals to be included in her personnel file but they were not.
o Even the biased “Roter report” indicates that Dr. Burton is an excellent teacher.
o On 12/2/2013 Dr. Throop said “What Dr. Burton has listed as her qualifications are really very important qualifications about her amazing abilities as a teacher. I think there is no question that her presence in the classroom is absolutely astounding. From what I can tell she is an inspired teacher.” (A13 - Grievance - Throop - 12-2-13), (Grievance-Throop-Transcript)
o Dean Throop - faculty forum on 4/3/14 – Throop applauds Burton’s expertise and passion.
o Dr. Burton’s personnel record has been tampered with (PersFile-MajorProblems-12-31-16).
o Dr. Burton’s DRB evaluations were conducted by people with severe conflict of interest. Dr. Caywood sat on her DRB while Burton was suing him in federal court. During that evaluation period Dr. Burton’s previous DRB scores were altered.
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.
These are just a few of the arguments that demonstrate that “just cause” does not exist to dismiss Dr. Burton. The administration has failed to prove their case against Dr. Burton. The charges should be dismissed.
Dr. Burton asks that the hearing panel recommend:
1. Dismissal of the charges against her
2. Removal of the Throop and Shields LOD’s from her personnel file
3. Correction of her personnel file to reflect accurately her quality as an instructor
4. Correction of her DRB records
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In Judge Peterson’s decision of 3-18-16 he wrote “In January 2013, at her earliest eligibility, Burton applied for tenure. She was granted tenure, effective for the 2013-14 academic year. Burton thus enjoyed substantial job security: tenure extends for an unlimited period, and tenured faculty can be dismissed only for just cause and only after due notice and a hearing. See Wis. Admin. Code UWS § 4.01.” (Dkt-90-Case1)
If Attorney Lattis’ definition of just cause is allowed to stand then Judge Peterson was wrong; Tenure is not substantial job security.
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“ 36. 46 Campus mis c onduct . (1) DEFirririorrs For the purposes of this section : (a) "Campus misconduct" means a crime or offense involving the use of or assistance to others in the use of force, disruption, or the seizure of property under control of any state or private institution of higher education with intent to prevent students or employes at the institution from engaging in their duties or pursuing their studies, where such offense was of a serious nature and contributed to a substantial disruption of the administration of'the institution . This includes, without restriction because of enumeration, the use of force with intent to cause disruption of class attendance or normal pedestrian or vehicular traffic to and from university buildings, classrooms, administrative or professional offices or athletic facilities.” https://docs.legis.wisconsin.gov/1971/statutes/statutes/36
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Chancellor Shields’ LOD Vagueness:
Davis v. Williams, 617 F. 2d 1100 - Court of Appeals, 5th Circuit 1980 - “Municipal employees must not be discharged pursuant to a scheme that stifles the exercise of fundamental personal liberty. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). The vice in the ordinance is that it is overbroad in reaching first-amendment-protected conduct, and vague in its definition of what kind of expressive conduct is or is not prohibited.”
Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). - “"[A] State may not choose means that unnecessarily restrict constitutionally protected liberty. `Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.' If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties." Kusper v. Pontikes, supra, at 59 (citations omitted). See United States v. Robel, 389 U. S. 258 (1967); Shelton v. Tucker, 364 U. S. 479 (1960). In short, if conditioning the retention of public employment on the employee's support of the in-party is to survive constitutional challenge, it must further some vital government end by a means that is least restrictive of freedom of belief and association in achieving that end, and the benefit gained must outweigh the loss of constitutionally protected rights.[17]”
Public Employee Discharge and Discipline
This book has some good stuff in it but it is only partial unless you buy it. Good info on vagueness.
Page 299 - 3:11 Arbitration: “The seven precepts of arbital just cause preclude discharge unless the employer has adhered to certain fair procedures:”
Page 1396 – “A 1997 California Supreme Court decision, Cotran v. Rollins Hudig International, Inc., measured just cause by “objective reasonableness” and required substantial evidence of misconduct, honest factfinding after an adequate investigation, employee opportunity to explain, and absence of pretextuality.”
Trinity Indus. v. United Steelworkers, 891 F. Supp. 342 (N.D. Tex. 1995)
“Although the Court can locate no Fifth Circuit case precisely on point, the Eighth and Ninth Circuits have upheld an arbitrator's award requiring reinstatement of an employee when the arbitrator found due process implications in a discharge for proper cause. In Chauffeurs, Teamsters and Helpers Local Union No. 878 v. Coca-Cola Bottling Co., 613 F.2d 716 (8th Cir.), cert. denied, 446 U.S. 988, 100 S. Ct. 2975, 64 L. Ed. 2d 847 (1980), the company attacked as "an unauthorized attempt to inflict his own brand of industrial justice" the arbitrator's decision that a lack of procedural fairness caused an employee's dismissal to fall short of the just cause standard. The Eighth Circuit determined that, as the collective bargaining agreement was silent on what procedural requirements attach to the process of a dismissal for just cause, the arbitrator's holding that the term has significant procedural implications was not beyond the scope of his authority and could not be set aside by the court. Id. at 721.”
“The issue submitted to the arbitrator was whether Englebert and Howell were discharged for "proper cause," and if not, what the remedy shall be. As "proper cause" is not defined in the Agreement, the arbitrator drew upon well-settled arbitral law to find that proper cause for discharge was lacking because Englebert and Howell were denied due process, a conclusion reached previously by arbitrators in similar cases.”
“The arbitrator agreed that Englebert's and Howell's refusal to take the drug test justified severe discipline, but he did not find proper cause for their discharge "because a fundamental right of the grievants to due process was violated." Specifically, they were not permitted to face their accuser, Sepp Etterer, nor were they told the circumstances of the probable cause that led to his requirement that they take a drug test. The arbitrator concluded that due process compels the company to provide accused employees an opportunity to defend themselves before a decision to discharge is made:”
Sabina has not been permitted to face her accuser. Call Gormley to the stand. She has not been allowed to cross-examine the witnesses. Call all of them to the stand.
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see Pickering:
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Include a rebuttal to this: (Lattis-RoterArguments-11-7-17)
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The void for vagueness doctrine applies in civil as well as criminal cases. Boutilier v. INS, 387 U.S. 118, 123, 87 S. Ct. 1563, 1566, 18 L. Ed. 2d 661 (1967). https://supreme.justia.com/cases/federal/us/387/118/case.html
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Faculty Bylaws, Part III, Article VIII
“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: We can use this to argue that the appeal panel needs to make sure there are no unfounded, arbitrary or irrelevant assumptions of fact. If there are it was they have evidence of “material prejudice” and it was “improper.”)
“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.
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AAUP – What is “Just Cause”? https://www.aaup.org/file/Termination_Discipline_2004.pdf
“Adequate cause has been defined as: a basis on which a faculty member, either with
academic tenure or during a term appointment, may be dismissed. The term refers especially to demonstrated incompetence or dishonesty in teaching or research, to substantial and manifest neglect of duty, and to personal conduct which substantially impairs the individual's fulfillment of his institutional responsibilities. — Faculty Tenure: Commission on Academic
Tenure 256 (Keast, ed., 1973) ("Faculty Tenure").”
“RIR 5(a) acknowledges that "adequate cause" is an appropriate standard under which to dismiss faculty so long as it is "related, directly and substantially, to the fitness of faculty members in their professional capacities as teachers or researchers." See AAUP, "Academic Freedom and Tenure: University of Virginia,"Academe: Bulletin of the American Association of University Professors 60 (Nov. - Dec. (2001) (finding that complaints against professor,
which involved mishandling of research funds, were "related, directly and substantially" to his fitness in his professional capacity as a researcher) ("Academe"). 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.“
“The standard is not that the moral sensibilities of persons in the particular community have been affronted. The standard is behavior that would evoke condemnation by the academic community generally.”
“One federal appellate court set forth its views as to minimum legal procedural safeguards in the academy:These safeguards may include (1) written notice of the grounds for termination; (2) disclosure of the evidence supporting termination; (3) the right to confront witnesses; (4) an opportunity to be heard in person and to present witnesses and documentary evidence; (5) a neutral and detached hearing body; and (6) a written statement by the fact finders as to the evidence relied upon.—Chung v. Park, 514 F.2d 382(3rd Cir. 1975)”
“The extent of legal due process required to faculty members tends to vary by jurisdiction, including the degree to which a formal pre-termination hearing is legally required. See generally The Law of Higher Education at 288-95. One federal appellate court set forth its views as to minimum legal procedural safeguards in the academy: These safeguards may include (1) written notice of the grounds for termination; (2) disclosure of the evidence supporting termination; (3) the right to confront witnesses; (4) an opportunity to be heard in
person and to present witnesses and documentary evidence; (5) a neutral and detached hearing body; and (6) a written statement by the fact finders as to the evidence relied upon.
—Chung v. Park, 514 F.2d 382 (3rd Cir. 1975)”
“Dismissed faculty members often challenge their dismissal on procedural grounds. Accordingly, administrators at public institutions would be well advised to provide more (Chung) not fewer (McDaniels) procedural protections, not only because greater due process often ensures a more considered decision, but also because affording such procedural protections communicates to courts that significant due process protections were afforded and that, therefore, the internal decision should be respected. See The Law of Higher Education
at 175-78 (Supp. 2000)”
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Marder Case: “The faculty committee, in a written report, found that the charges against Professor Marder were not proven, but also found that there had been a “near total breakdown in collegiality in the Department of Communicating Arts” and further noted that “Dr. Marder…engaged in a course of conduct that is simply unacceptable on this or any other university campus… The committee was unwilling to recommend either serious discipline or dismissal for Professor Marder, but did recommend (1) that Marder be transferred to another department and (2) that Marder be “forced to undergo professional counseling…”
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9.03.
CAUSE FOR DISMISSAL. (See UWS 4.01.)
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.
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Regent Policy Document 20-24 states:
“Tenure is the keystone for academic freedom and excellence and is awarded for academic and professional merit. Tenure is an essential part of the guarantee of academic freedom that is necessary for university-based intellectual life to flourish. The grant of indeterminate tenure to faculty members represents an enormous investment of university and societal resources, and those who receive this investment do so only after rigorous review which established that their scholarship, research, teaching and service meet the highest standards and are congruent with the needs of the university. It is therefore expressly recognized that the awarding and continued enjoyment of faculty tenure is of vital importance to the protection of academic freedom and to the overall academic quality of the University of Wisconsin System institutions.”
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Excerpt from Appeal decision (Dkt 40): “Burton received tenure within months of this incident and can point to no material consequences resulting from it. While she may have perceived that Throop and Caywood had retaliated against her, these actions simply do not rise to the level of a materially adverse employment action protected by Title IX. Therefore, like the district court, we need not engage in any causation analysis. The district court correctly granted summary judgment to the Board on the Title IX retaliation claim.” The court used the fact that Burton was given Tenure to show that she was given significant protection and that was one of the major reasons her appeal was denied. Now her tenure is threatened unfairly.