UWS Chapter 4 - Faculty procedures for dismissal

These rules were promulgated in accordance with the rulemaking authority vested in the Board of Regents by Chapter 36 of the Wisconsin Statutes. The rules govern areas such as the use of university facilities, conduct, and dismissal of personnel. Please note that not all UWS rules have a corresponding UWL related policy.

Subchapter I — General
4.01   Dismissal for cause.
4.015   Definitions.
Subchapter II — Procedures for Faculty Dismissal and Discipline in Non-Title IX Cases
4.016   Subchapter II definitions.
4.02   Responsibility for charges.
4.03   Standing faculty committee.
4.04   Hearing.
4.05   Adequate due process.
4.06   Procedural guarantees.
4.07   Recommendations to the chancellor and the regents.
4.08   Board review.
4.09   Suspension from duties.
4.10   Date of dismissal.
Subchapter III — Procedures for Faculty Dismissal and Discipline in Title IX Cases
4.11   Subchapter III definitions.
4.12   Dismissal for cause or lesser discipline for Title IX misconduct.
4.13   Application of Title IX misconduct disciplinary procedure.
4.14   Dismissal of formal Title IX complaint and related appeal.
4.15   Investigation of Title IX misconduct allegations.
4.16   Review of evidence.
4.17   Final investigative report.
4.18   Standing faculty committee and hearing examiner.
4.19   Adequate due process.
4.21   Hearing committee or hearing examiner findings and recommendations to the chancellor.
4.22   Chancellor's decision.
4.23   Appeal to board.
4.24   Suspension from duties.
Subchapter I — General
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. Any faculty member having a probationary appointment may be dismissed prior to the end of the faculty member's term of appointment only by the board and only for just cause and only after due notice and hearing. A decision not to renew a probationary appointment or not to grant tenure does not constitute a dismissal.
(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.
(3) Faculty dismissal for cause and lesser discipline based on allegations of Title IX misconduct, as defined in s. UWS 4.11, shall be governed by ss. UWS 4.11 to UWS 4.24.
History: Cr. Register, January, 1975, No. 229, eff. 2-1-75; CR 20-059: am. (1), cr. (3) Register May 2021 No. 785, eff. 6-1-21; correction in (1) made under s. 35.17, Stats., Register May 2021 No. 785.
UWS 4.015 Definitions. In this chapter:
(1)“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."
(2)“Complaint" means an allegation against a faculty member reported to an appropriate university official.
(3)“Consent” means words or overt actions by a person who is competent to give informed consent, indicating a freely given agreement to engage in sexual activity or other activity referenced in the definitions of sexual assault and sexual exploitation in this section. A person is unable to give consent if the person is in a state of incapacitation because of drugs, alcohol, physical or intellectual disability, or unconsciousness.
(4)“Consult" or “consulting" means thoroughly reviewing and discussing the relevant facts and discretionary issues.
(5)“Dating violence" means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the complainant; and where the existence of such a relationship shall be determined based on a consideration of the following factors: the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.
(6)“Domestic violence" means felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the complainant, by a person with whom the complainant shares a child in common, by a person who is cohabitating with or has cohabitated with the complainant as a spouse or intimate partner, by a person similarly situated to a spouse of the complainant under the domestic or family violence laws of Wisconsin, or by any other person against an adult or youth complainant who is protected from that person's acts under the domestic or family violence laws of Wisconsin as per ss. 813.12 (1) (am) and 968.075, Stats.
(6m) “ Incapacitation” means the state of being unable to physically or mentally make informed rational judgments and effectively communicate, and may include unconsciousness, sleep, or blackouts, and may result from the use of alcohol or other drugs. Where alcohol or other drugs are involved, evaluation of incapacitation requires an assessment of how the consumption of alcohol or drugs affects a person's decision-making ability; awareness of consequences; ability to make informed, rational judgments; capacity to appreciate the nature and quality of the act; or level of consciousness. The assessment is based on objectively and reasonably apparent indications of incapacitation when viewed from the perspective of a sober, reasonable person.
(7)“Preponderance of the evidence" means information that would persuade a reasonable person that a proposition is more probably true than not. It is a lower standard of proof than “clear and convincing evidence."
(9)“Sexual assault" means an offense that meets any of the following definitions:
(a) “Rape” means the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of the complainant, without the consent of the complainant.
(b) “Fondling” means the touching of the private body parts of the complainant for the purpose of sexual gratification, without the consent of the complainant, including instances where the complainant is incapable of giving consent because of the complainant's age or because of the complainant's temporary or permanent mental incapacity.
(c) “Incest” means sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law as provided in s. 944.06, Stats.
(d) “Statutory rape” means sexual intercourse with a complainant who is under the statutory age of consent as provided in s. 948.02, Stats.
(10)“Sexual exploitation” means attempting, taking or threatening to take, nonconsensual sexual advantage of another person . Examples include:
(a) Engaging in the following conduct without the knowledge and consent of all participants:
1. Observing, recording, or photographing private body parts or sexual activity of the complainant.
2. Allowing another person to observe, record, or photograph sexual activity or private body parts of the complainant.
3. Otherwise distributing recordings, photographs, or other images of the sexual activity or private body parts of the complainant.
(b) Masturbating, touching one's genitals, or exposing one's genitals in the complainant's presence without the consent of the complainant, or inducing the complainant to do the same.
(c) Dishonesty or deception regarding the use of contraceptives or condoms during the course of sexual activity.
(d) Inducing incapacitation through deception for the purpose of making the complainant vulnerable to non-consensual sexual activity.
(e) Coercing the complainant to engage in sexual activity for money or anything of value.
(f) Threatening distribution of any of the following, to coerce someone into sexual activity or providing money or anything of value:
1. Photos, videos, or recordings depicting private body parts or sexual activity of the complainant.
2. Other information of a sexual nature involving the complainant, including sexual history or sexual orientation.
(11)“Stalking" means engaging in a course of conduct directed at the complainant that would cause a reasonable person to fear for their safety or the safety of others; or suffer substantial emotional distress.
History: CR 15-061: cr. Register June 2016 No. 726, eff. 7-1-16; correction in (2) and (8) under 35.17, Stats., Register June 2016 No. 726CR 20-059: r. and recr. (intro.), (2) to (4), am. (5), (6), cr. (6m), r. (8), r. and recr. (9), (10), am. (11) Register May 2021 No. 785, eff. 6-1-21; correction in (5), (10) (a) 2. made under s. 35.17, Stats., Register May 2021 No. 785.
Subchapter II — Procedures for Faculty Dismissal and Discipline in Non-Title IX Cases
UWS 4.016 Subchapter II definitions. In this subchapter:
(1) “ Complainant" means any individual who is alleged to be the subject of sexual harassment, sexual assault, dating violence, domestic violence, stalking, or sexual exploitation as defined in this section and s. UWS 4.015.
(2) “ Sexual harassment" means conduct on the basis of sex that satisfies any of the following:
(a) Quid pro quo sexual harassment.
1. An employee of the institution conditions the provision of an aid, benefit, or service of the institution directly or indirectly on an individual's participation in unwelcome sexual conduct; or
2. An employee of the institution either, explicitly or implicitly, conditions the provision of an academic, professional, or employment-related opportunity, aid, benefit, or service on an individual's participation in unwelcome sexual conduct.
(b) Hostile environment sexual harassment.
1. Unwelcome conduct of a sexual nature directed towards a student, an employee, or a person participating in a program or activity of the university that, when using the legal “reasonable person” standard, is so severe, pervasive, and objectively offensive that it effectively denies the person equal access to the institution's education program or activity; or
2. Unwelcome conduct of a sexual nature directed towards an individual that, when using the legal “reasonable person” standard, is so severe or pervasive and objectively offensive that it has the purpose or effect of unreasonably interfering with an individual's academic or work performance or participation in an university sponsored or supported activity.
History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register May 2021.
UWS 4.02 Responsibility for charges.
(1)  Whenever the chancellor of an institution within the University of Wisconsin system receives a complaint against a faculty member which the chancellor deems substantial and which, if true, might lead to dismissal under s. UWS 4.01, the chancellor, or designee, shall within a reasonable time initiate an investigation and shall, prior to reaching a decision on filing charges, offer to discuss the matter informally with the faculty member. For complaints of sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the chancellor, or designee, shall appoint the Title IX Coordinator, or designee, to initiate an investigation in accordance with applicable policies. The chancellor, or designee, shall also offer to discuss the matter informally with the complainant, and provide information regarding rights under this chapter. Both the faculty member and the complainant shall have the right to be accompanied by an advisor of their choice at any meeting or proceeding that is part of the institutional disciplinary process. 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. If the faculty member does not request a hearing, action shall proceed along normal administrative lines but the provisions of ss. UWS 4.024.09, and 4.10 shall still apply.
(2)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.
(3)The statement of charges shall be served personally, by electronic means, or by certified mail, return receipt requested. If such service cannot be made within 20 days, service shall be accomplished by first class mail and by publication as if the statement of charges were a summons and the provisions of s. 801.11 (1) (c), Stats., were applicable. Such service by mailing and publication shall be effective as of the first insertion of the notice of statement of charges in the newspaper. If the statement of charges includes sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the statement shall be provided to the complainant upon request, except as may be precluded by applicable state or federal law.
History: Cr. Register, January, 1975, No. 229, eff. 2-1-75; correction in (3) made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1995, No. 4742015 Wis. Act 330 ss. 620: am. (1), (3) Register April 2016 No. 724, eff. 5-1-16; CR 15-061: am. (1), (3) Register June 2016 No. 726, eff. 7-1-16; merger of (3) treatments by 2015 Wis. Act 330 and CR 11-061 made under s. 13.92 (4) (bm) Register September 2016 No. 729CR 20-059: am. (1), (3) Register May 2021 No. 785, eff. 6-1-21.
UWS 4.03 Standing 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., and conduct the hearing, make a verbatim record of the hearing, prepare a summary of the evidence and transmit such record and summary along with its recommended findings of law and decision to the board according to s. UWS 4.07.
History: Cr. Register, January, 1975, No. 229, eff. 2-1-75; correction made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1995, No. 474; correction made under s. 13.93 (2m) (b) 7., Stats., Register May 2007 No. 617.
UWL 4.03     Standing faculty committee.
The faculty standing committee for dismissal cases shall be the hearing committee specified in the Faculty Senate By-laws.

UWS 4.04 Hearing. 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.
History: Cr. Register, January, 1975, No. 229, eff. 2-1-75.
UWS 4.05 Adequate 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 the faculty member's defense;
(d) A right to an advisor, counsel, or other representatives, and to offer witnesses;
(e) A right to confront and cross-examine adverse witnesses. If the complaint involves sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the hearing committee may reasonably restrict the faculty member or the complainant from questioning each other;
(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.
(2)If the complaint involves sexual harassment, sexual assault, dating violence, domestic violence, or stalking, the complainant shall have all the rights provided to the faculty member in sub. (1) (a) to (h), except as may be precluded by applicable state or federal law.
History: Cr. Register, January, 1975, No. 229, eff. 2-1-75; correction in (1) (h) made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1995, No. 474; correction in (1) (h) made under s. 13.93 (2m) (b) 7., Stats., Register May 2007 No. 617CR 15-061: am. (1) (d), (e), cr. (2) Register June 2016 No. 726, eff. 7-1-16; correction in (2) under 35.17, Stats., Register June 2016 No. 726CR 20-059: am. (1) (c), (e) Register May 2021 No. 785, eff. 6-1-21.
UWS 4.06 Procedural guarantees.
(1)  Any hearing held shall comply with the requirements set forth in s. UWS 4.05. The following requirements shall also be observed:
(a) The burden of proof of the existence of just cause is on the administration or its representatives;
(am) For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the standard of proof shall be a preponderance of the evidence;
(b) No faculty member who participated in the investigation of allegations leading to the filing of a statement of charges, or in the filing of a statement of charges, or who is a material witness shall be qualified to sit on the committee in that case;
(c) The hearing shall be closed unless the faculty member under charges requests an open hearing, in which case it shall be open (see subch. V of ch. 19, Stats., Open Meetings of Governmental Bodies);
(d) The faculty hearing committee may, on motion of either party, and, if the complaint involves sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, on the motion of the complainant, disqualify any one of its members for cause by a majority vote. If one or more of the faculty hearing committee members disqualify themselves or are disqualified, the remaining members may select a number of other members of the faculty equal to the number who have been disqualified to serve, except that alternative methods of replacement may be specified in the rules and procedures adopted by the faculty establishing the standing committee under s. UWS 4.03;
(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;
(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;
(g) If a proceeding on charges against a faculty member not holding tenure is not concluded before the faculty member's appointment would expire, the faculty member may elect that such proceeding be carried to a final decision. Unless the faculty member so elects in writing, the proceeding shall be discontinued at the expiration of the appointment;
(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;
(i) Nothing in this section shall prevent the settlement of cases by mutual agreement between the administration and the faculty member, with board approval, at any time prior to a final decision by the board;
(j) Adjournment shall be granted to enable the parties, including the complainant, to investigate evidence as to which a valid claim of surprise is made.
History: Cr. Register, January, 1975, No. 229, eff. 2-1-75; correction in (1) (c) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 2001, No. 544CR 15-061: cr. (1) (am), am. (1) (d), (i), (j) Register June 2016 No. 726, eff. 7-1-16; CR 20-059: am. (1) (am), (c), (d), (g) Register May 2021 No. 785, eff. 6-1-21.
UWS 4.07 Recommendations to the chancellor and 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 the chancellor's 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 the 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, sexual exploitation, 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, sexual exploitation, or stalking, the complainant shall have all the rights provided to the faculty member in this paragraph.
History: Cr. Register, January, 1975, No. 229, eff. 2-1-75; CR 15-061: am. Register June 2016 No. 726, eff. 7-1-16; CR 20-059: am. Register May 2021 No. 785, eff. 6-1-21; correction in (title) made under s. 13.92 (4) (b) 2., Stats., Register May 2021 No. 785.
UWS 4.08 Board 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 Meetings of Governmental Bodies). For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, 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.
(2)If, after the hearing, the board decides to take action different from the recommendation of the faculty hearing committee and/or the chancellor, then before taking final action the board shall consult with the faculty hearing committee and/or the chancellor, as appropriate.
(3)If a faculty member whose dismissal is sought does not request a hearing pursuant to s. UWS 4.04 the board shall take appropriate action upon receipt of the statement of charges and the recommendation of the chancellor.
(4)For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the faculty member and complainant shall be simultaneously notified of the board's final decision.
History: Cr. Register, January, 1975, No. 229, eff. 2-1-75; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 2001, No. 544CR 15-061: am. (1), cr. (4) Register June 2016 No. 726, eff. 7-1-16; CR 20-059: am. (1), (4) Register May 2021 No. 785, eff. 6-1-21.
UWS 4.09 Suspension from duties. Pending the final decision as to dismissal, the faculty member shall not normally be relieved of duties; but if, after consultation with appropriate faculty committees the chancellor finds that substantial harm to the institution may result if the faculty member is continued in the faculty member's position, the faculty member may be relieved immediately of the faculty member's duties, but the faculty member's pay shall continue until the board makes its decision as to dismissal, unless the chancellor also makes the determinations set forth in s. UWS 7.06 (1) in which case the suspension from duties may be without pay and the procedures set forth in s. UWS 7.06 shall apply.
History: Cr. Register, January, 1975, No. 229, eff. 2-1-75; CR 06-078: am. Register May 2007 No. 617, eff. 7-1-07; CR 20-059: am. Register May 2021 No. 785, eff. 6-1-21.
UWL 4.09    Suspension from duties.

The faculty consultation shall concern the propriety, the length, and the other conditions of the suspension.

UWS 4.10 Date of dismissal. A decision by the board ordering dismissal shall specify the effective date of the dismissal.
History: Cr. Register, January, 1975, No. 229, eff. 2-1-75.
Subchapter III — Procedures for Faculty Dismissal and Discipline in Title IX Cases
UWS 4.11 Subchapter III definitions. In this subchapter:
(1) “ Complainant" means any individual who is alleged to be the subject of Title IX misconduct, as defined in this section.
(2) “ Education program or activity” means, for purposes of Title IX misconduct only, locations, events, or circumstances at which the university exercised substantial control over both the faculty member and the context in which the sexual harassment occurred, and also includes any building owned or controlled by a student organization that is officially recognized by the university.
(3) “ Formal Title IX complaint” means, for the purposes of a Title IX misconduct only, a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment, sexual assault, dating violence, domestic violence, or stalking against a faculty member and requesting that the university investigate the allegations. At the time of filing of the formal Title IX complaint, the complainant must be participating in or attempting to participate in an educational program or activity. A formal Title IX complaint may be filed in person, by mail, or electronic mail, or any other method designated by the university. A formal Title IX complaint shall include a physical or digital signature of the complainant or the Title IX Coordinator.
(4) “ Respondent” means an individual who has been reported to be the perpetrator of Title IX misconduct as defined in this section.
(5) “ Sexual harassment” means conduct on the basis of sex that satisfies one or more of the following:
(a) An employee of the institution conditions the provisions of an aid, benefit, or service of the institution directly or indirectly on an individual's participation in unwelcome sexual conduct.
(b) Unwelcome conduct of a sexual nature directed toward a student, an employee, or a person participating in a program or activity of the university that, when using the legal “reasonable person” standard, the conduct is so severe, pervasive, and objectively offensive that it effectively denies the person equal access to the institution's education program or activity.
(6) “ Title IX misconduct” means sexual assault, stalking, dating violence, or domestic violence, as defined in s. UWS 4.015 and sexual harassment, as defined in sub. (5).
History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21; corrections in (6) made under ss. 13.92 (4) (b) 7. and 35.17, Stats., and correction in (3) made under s. 13.92 (4) (b) 12., Stats., Register May 2021 No. 785.
UWS 4.12 Dismissal for cause or lesser discipline for Title IX misconduct.
(1)  The board may dismiss a faculty member for cause, or impose lesser discipline on a faculty member, for Title IX misconduct as defined in s. UWS 4.11.
(2) Title IX misconduct allegations against faculty shall follow the disciplinary procedure in ss. UWS 4.11 to 4.24. The board may dismiss a faculty member having tenure only for just cause and may otherwise discipline a faculty member having tenure only after due notice and hearing. The board may dismiss a faculty member having a probationary appointment prior to the end of the faculty member's term of appointment only for just cause and may otherwise discipline the faculty member only after due notice and hearing.
(3) 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. These rights and privileges shall be observed in determining whether or not just cause for dismissal, or grounds for other discipline, exists.
(4) The faculty member is presumed to be not responsible for the alleged Title IX misconduct until a final decision regarding responsibility is made at the conclusion of the disciplinary process. The burden of proof of the existence of just cause for a dismissal, or of grounds for other discipline, is on the university administration.
History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21.
UWS 4.13 Application of Title IX misconduct disciplinary procedure. This disciplinary procedure for Title IX misconduct will be used only when all of the following requirements are met:
(1) There is a formal Title IX complaint alleging Title IX misconduct on the basis of sex.
(2) The conduct occurred in the United States.
(3) The conduct occurred within a university's education program or activity.
(4) The complainant must be participating in or attempting to participate in the education program or activity of the university at the time of filing the complaint.
(5) The complainant or Title IX coordinator has submitted a formal Title IX complaint.
History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21.
UWS 4.14 Dismissal of formal Title IX complaint and related appeal.
(1)  The university shall dismiss a formal Title IX complaint consisting of allegations that meet any of the following conditions:
(a) The alleged conduct would not constitute Title IX misconduct if proved.
(b) The alleged conduct did not occur in a university program or activity.
(c) The alleged conduct did not involve actions against someone physically located in the United States.
(2) The university may dismiss a formal Title IX complaint when any of the following applies:
(a) The complainant formally requests in writing to withdraw the formal Title IX complaint.
(b) The faculty member is no longer employed by the university.
(c) Specific circumstances prevent the university from gathering evidence sufficient to reach a determination on the allegations contained in the formal Title IX complaint.
(3) The university generally shall decide whether to dismiss a formal Title IX complaint within 30 days of receipt of the formal Title IX complaint, but the university may extend that timeline as necessary. If a formal Title IX complaint is dismissed, then the university shall provide notice of the dismissal and reasons therefore to the faculty member and complainant in writing.
(4) Within 20 days of receipt of the notice of dismissal, the complainant may appeal the dismissal by filing a written appeal with the chancellor. The complainant may appeal on any of the following bases:
(a) Procedural irregularity that affected the outcome of the matter.
(b) New evidence that was not reasonably available at the time of the dismissal that could affect the outcome of the matter.
(c) The university employee making the dismissal decision had a conflict of interest or bias for the faculty member or against the complainant, or against complainants generally, that affected the dismissal decision.
(5) The chancellor shall provide the faculty member and complainant the opportunity to provide a written statement supporting or challenging the dismissal. The chancellor shall simultaneously issue a decision to the complainant and the faculty member within 30 days of receipt of a written appeal. The chancellor's decision shall include the chancellor's rationale for the decision and shall be final.
(6) The dismissal of a formal Title IX complaint does not preclude the university from otherwise pursuing discipline against the faculty member under other administrative rules or university policies.
History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (3) made under s. 13.92 (4) (b) 12., Stats., Register May 2021 No. 785.
UWS 4.15 Investigation of Title IX misconduct allegations.
(1)  Unless the university dismisses a formal Title IX complaint, the university shall appoint an investigator to conduct an investigation of the allegations in the formal Title IX complaint.
(2) The investigator shall provide the faculty member and the complainant with a notice of investigation. The notice shall include all of the following:
(a) The grievance process, including informal resolution options.
(b) The allegations of Title IX misconduct with sufficient detail for the faculty member to prepare a response to the allegations, including the identity of the complainant as well as the date and location of the incident if available.
(c) A statement affirming the faculty member is presumed not responsible for the alleged violation.
(d) The faculty member and complainant have the right to an advisor of their choice.
(e) The faculty member and complainant have the right to inspect and review the evidence.
(f) Information about any code of conduct rules which prohibit the faculty member or the complainant from knowingly making false statements or submitting false information during the disciplinary process.
(3) The faculty member and complainant shall receive an amended notice of investigation any time additional charges are added during the course of an investigation. Formal Title IX complaints involving more than one complainant or respondent may be consolidated if they arise out of the same facts or circumstances.
(4) The university's investigator shall do all of the following:
(a) Provide both the faculty member and the complainant an equal opportunity to provide witnesses, including fact and expert witnesses, who may be interviewed by the investigator, and other inculpatory and exculpatory evidence.
(b) Not restrict the ability of either the faculty member or complainant to discuss the allegations under investigation or to gather and present relevant evidence.
(c) Provide the faculty member and complainant the same opportunity to be accompanied by an advisor of their choice during meetings relating to the investigation but may limit the participation by the advisor so long as those limits are applied equally.
(d) Provide both the faculty member and the complainant an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal Title IX complaint, including evidence upon which the university does not intend to rely in reaching a determination regarding responsibility, and inculpatory or exculpatory evidence whether obtained from a faculty member, complainant, or other source, so that the faculty member and complainant can meaningfully respond to the evidence prior to conclusion of the investigation.
(5) As part of its investigation and disciplinary process, the university may not access, consider, disclose, or otherwise use a faculty member's or complainant's records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional's or paraprofessional's capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the faculty member or complainant, unless the university obtains the faculty member's or complainant's voluntary, written consent to do so in relation to the investigation and disciplinary process.
(6) The university's investigator generally shall complete the investigation and issue a final investigative report within 90 days of the investigator's appointment. However, the investigator may extend the investigation's time frame where circumstances warrant.
History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (1), (3), (4) (d) made under s. 13.92 (4) (b) 12., Stats., Register May 2021 No. 785.
UWS 4.16 Review of evidence.
(1)  Prior to completion of the final investigative report, the investigator shall send to the faculty member and complainant and their respective advisors, if any, the evidence gathered during the investigation for inspection and review by the faculty member and the complainant. The evidence may be provided in an electronic format or a hard copy. The evidence provided includes evidence upon which the university does not intend to rely in reaching a determination regarding responsibility, and inculpatory or exculpatory evidence, whether obtained from the faculty member, complainant or other source, to permit the faculty member and complainant to meaningfully respond to the evidence prior to conclusion of the investigation.
(2) The faculty member and the complainant shall be provided at least 10 days to submit a written response to the evidence. The investigator shall consider any written responses prior to completion of the final investigative report.
History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21.
UWS 4.17 Final investigative report. The investigator shall create a final investigative report that fairly summarizes relevant evidence and send the report to the faculty member, the complainant, and their advisors, if any, for their review and response at least 10 days prior to a hearing. The written report shall be delivered simultaneously to the faculty member and complainant. The university shall, upon receipt of the final investigative report, proceed to schedule a live hearing on the matter. A hearing shall be conducted unless both the faculty member and the complainant waive, in writing, the right to such a hearing.
History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21.
UWS 4.18 Standing faculty committee and hearing examiner.
(1)  The chancellor of each university, in consultation with faculty representatives, shall adopt policies providing for the designation of a Title IX conduct hearing examiner. The chancellor shall select a hearing examiner pursuant to these policies to hear faculty dismissal and discipline cases. Additionally, the faculty of each university shall provide a standing hearing committee charged with hearing faculty dismissal and discipline cases. The chancellor shall appoint the presiding member of the hearing committee, who may be a hearing examiner. The university shall decide whether a hearing examiner or a hearing committee will hear the matter.
(2) The hearing committee or the hearing examiner described in sub. (1) shall conduct the hearing, make a verbatim record of the hearing, and transmit such record along with factual findings and decision to the chancellor. The hearing shall be held not later than 45 days after completion of the final investigative report except that this time limit may be extended by the hearing committee or the hearing examiner.
History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21.
UWS 4.19 Adequate due process.
(1)  A fair hearing for a faculty member against whom dismissal or other discipline is sought shall include all of the following:
(a) Service of written notice of a live hearing on the allegations in the formal Title IX complaint at least 10 days prior to the hearing.
(b) A right to the names of witnesses and of access to documentary and other evidence upon the basis of which dismissal or other discipline is sought.
(c) A right to be heard in the faculty member's defense.
(d) A right to an advisor, counsel, or other representatives, and to offer witnesses. The faculty member's advisor or counsel may ask all witnesses relevant questions and follow-up questions, including those challenging credibility. Credibility determinations, however, may not be made based on a person's status as a complainant, respondent, or witness. If the faculty member does not have an advisor, the university shall provide the faculty member, without charge, an advisor of the university's choice to conduct cross-examination on behalf of the faculty member. The advisor may be an attorney.
(e) A right to confront and cross-examine adverse witnesses. The faculty member's or complainant's advisor shall conduct cross examination directly, orally, and in real time. The faculty member and the complainant may not personally conduct cross examination. If the faculty member, the complainant, or a witness does not submit to cross-examination at the hearing, the hearing committee or the hearing examiner may not rely on any statement of the faculty member, complainant, or witness in reaching its findings and recommendations. However, the hearing committee or hearing examiner may not draw a negative inference in reaching its findings and recommendations based solely on the absence of a faculty member, complainant, or witness from the hearing or refusal to answer cross-examination or other questions.
(f) A verbatim record of all hearings, which might be a sound recording, made available at no cost for inspection and review.
(g) Written findings of fact and recommendations based on the hearing record. The written findings of fact and recommendations shall include all of the following:
1. Identification of the allegations potentially constituting Title IX misconduct.
2. A description of the procedural steps taken from the receipt of the formal Title IX complaint through the hearing committee's or hearing examiner's completion of written findings and recommendations, including any notifications to the faculty member and the complainant, interviews with the faculty member, the complainant, and witnesses, site visits, methods used to gather evidence, and hearings held.
3. Conclusions regarding the application of the university's conduct rules and policies to the facts; a statement of, and rationale for, the result as to each allegation, including a recommendations regarding responsibility, any disciplinary sanction recommended to be imposed, and whether remedies designed to restore or preserve equal access to the university's educational program or activity will be provided to the complainant.
4. The university's procedures and permissible bases for complainant and employee to appeal.
(h) Admissibility of evidence is governed by s. 227.45 (1) to (4), Stats. Only relevant questions may be asked of the faculty member, the complainant, and any witnesses. The hearing committee or hearing examiner shall determine whether a question is relevant and explain the decision to exclude a question as not relevant. Questions and evidence about the complainant's sexual predisposition or prior sexual behavior are not relevant, unless such questions or evidence are offered to prove that someone other than the faculty member committed the conduct alleged by the complainant, or unless the questions or evidence concern specific incidents of the complainant's prior sexual behavior with the faculty member and are offered to prove consent.
(i) The hearing may be conducted with all participants physically present in the same location, or at the hearing committee's or hearing examiner's discretion, any or all participants may appear at the hearing virtually, with technology enabling the participants simultaneously to see and hear each other. Upon the faculty member's request, the university shall provide for the hearing to occur with faculty member and complainant located in separate rooms with technology enabling the hearing committee or hearing examiner, the faculty member, and the complainant to simultaneously see and hear witnesses answering questions.
(2) The complainant shall have all the rights provided to the faculty member in sub. (1) (a) to (i).
History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (1) (a), (g) 2. made under s. 13.92 (4) (b) 12., Stats., and correction in (1) (h) made under s. 35.17, Stats., Register May 2021 No. 785.
UWS 4.20 Procedural guarantees.
(1)  Any hearing held shall comply with the requirements set forth in s. UWS 4.19. All of the following requirements shall also be observed:
(a) The burden of proof of the existence of just cause to support dismissal, or of grounds to support other discipline, is on the university administration.
(am) The standard of proof shall be a preponderance of the evidence.
(b) No faculty member who participated in the investigation of a formal Title IX complaint, or who is a material witness, shall be qualified to sit on the hearing committee addressing that complaint. No university employee or other person who participated in the investigation of a formal Title IX complaint, or who is a material witness, shall be qualified to serve as the hearing examiner addressing that complaint.
(c) The hearing shall be closed unless the faculty member or the complainant requests an open hearing, in which case it shall be open.
Note: See subch. of ch. 19, Stats., Open Meetings of Governmental Bodies.
(d) The hearing committee may, on motion of the complainant or the faculty member, disqualify any one of its members for cause by a majority vote. If one or more of the hearing committee members disqualify themselves or are disqualified, the remaining members may select a number of other members of the faculty equal to the number who have been disqualified to serve, except that alternative methods of replacement may be specified in the rules and procedures adopted by the faculty establishing the standing committee under this rule.
(e) The hearing committee or the hearing examiner may 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 unless the person holding the privilege has waived it. The hearing committee or the hearing examiner shall follow the evidentiary rules in s. UWS 4.19 (1) (h).
(f) If the hearing committee requests, the chancellor shall provide legal counsel after consulting with the hearing committee concerning its wishes in this regard. The function of legal counsel shall be to advise the hearing committee, consult with them on legal matters, and such other responsibilities as shall be determined by the hearing committee within the provisions of the rules and procedures adopted by the faculty of the institution in establishing the standing faculty committee under this policy.
(g) If the Title IX disciplinary process described in ss. UWS 4.11 to 4.24 against a faculty member not holding tenure is not concluded before the faculty member's appointment would expire, the faculty member may elect that such process be carried to a final decision. Unless the faculty member so elects in writing, the process shall be discontinued at the expiration of the appointment.
(h) Nothing in this section shall prevent the settlement of cases by mutual agreement between the university administration, the complainant, and the faculty member.
(i) Delay or adjournment of the hearing for good cause may be granted. Good cause includes the need for any of the following:
1. To investigate evidence as to which a valid claim of surprise is made.
2. To ensure the presence of the faculty member or the complainant, an advisor, or a witness.
3. To provide language assistance or accommodation of disabilities.
4. To accommodate concurrent law enforcement activity.
History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21.
UWS 4.21 Hearing committee or hearing examiner findings and recommendations to the chancellor. The hearing committee or hearing examiner shall simultaneously send to the chancellor, to the complainant, and to the faculty member concerned, within 30 days after the conclusion of the hearing, or otherwise as soon as practicable, a verbatim record of the testimony and a copy of its factual findings and recommendations.
History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21.
UWS 4.22 Chancellor's decision.
(1)  Within 20 days after receipt of the record and findings and recommendations from the hearing committee or the hearing examiner the chancellor shall review those materials and afford the faculty member and the complainant an opportunity to discuss them. The chancellor's decision shall be based on the record created before the hearing committee or the hearing examiner. The chancellor shall prepare a written decision within 20 days after completing the meetings with the faculty member and the complainant, unless the chancellor's proposed decision differs substantially from the recommendations of the hearing committee or hearing examiner. If the chancellor's proposed decision differs substantially from those recommendations, the chancellor shall promptly consult the hearing committee or the hearing examiner and provide the committee or the hearing examiner with a reasonable opportunity for a written response prior to making a decision.
(2) The chancellor may adopt the hearing committee or hearing examiner's findings and recommendations as the chancellor's decision. The chancellor shall explain in the decision any substantial differences from those findings and recommendations.
(3) The chancellor's decision shall be simultaneously sent to the faculty member concerned, the complainant, and to the hearing committee or the hearing examiner. The chancellor's decision also shall be submitted through the president of the system to the board, accompanied by a copy of the hearing committee's or hearing examiner's findings and recommendations. The chancellor's decision and the findings and recommendations shall be forwarded through the president of the system to the board for its review.
History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21.
UWS 4.23 Appeal to board.
(1)  The board shall provide the faculty member and the complainant an opportunity for filing exceptions to the chancellor's decision, and for oral arguments, unless the faculty member and the complainant waive in writing the right to file exceptions and for oral arguments. The hearing of any oral arguments shall be closed unless the faculty member or the complainant requests an open hearing.
Note: See subch. V of ch. 19, Stats., Open Meetings of Governmental Bodies.
(2) The faculty member or complainant may file written exceptions to the chancellor's decision, and the board shall conduct its review of the chancellor's decision, on any of the following bases:
(a) Procedural irregularity that affected the outcome of the matter.
(b) New evidence that was not reasonably available at the time of the live hearing that could affect the outcome of the matter.
(c) Conflict of interest or bias for or against the faculty member or complainant, or against complainants and respondents generally, by the Title IX coordinator, investigator, the chancellor, the hearing examiner, or the hearing committee members that affected the outcome.
(3) If the board decides to take action different from the decision of the chancellor, then before taking final action the board shall consult with the chancellor.
(4) The board shall make its decision based on the record created before the hearing committee or hearing examiner. Within 60 days of receipt of the chancellor's decision, or otherwise as soon as practicable, the board shall simultaneously notify the faculty member and the complainant of the board's final decision, which shall include the board's rationale for its decision.
(5) A decision by the board ordering dismissal of a faculty member shall specify the effective date of the dismissal.
History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21.
UWS 4.24 Suspension from duties. Pending the final decision on dismissal or other discipline, the faculty member may not normally be relieved of duties; but if, after consultation with appropriate faculty committees the chancellor finds that substantial harm to the university may result if the faculty member is continued in the faculty member's position, the faculty member may be relieved immediately of the faculty member's duties, but the faculty member's pay shall continue until a final decision as to dismissal, unless the chancellor also makes the determinations set forth in s. UWS 7.06 in which case the suspension from duties may be without pay and the procedures set forth in s. UWS 7.06 shall apply.
History: CR 20-059: cr. Register May 2021 No. 785, eff. 6-1-21.




Keywords:faculty dismissal, termination   Doc ID:104776
Owner:John A.Group:UW-La Crosse
Created:2020-08-08 14:28 CSTUpdated:2022-02-23 10:53 CST
Sites:UW-La Crosse
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