Q. I don’t see mention of the process for appealing a tenure denial in UWS 3, Wis. Admin. Code. Am I missing something?
A. No. The process outlined in UWS 3.08, Wis. Admin. Code, governs both appeals of nonrenewal decisions and appeals of tenure decisions; in other words, for the purposes of the Administrative Code and its process, a tenure denial is a nonrenewal.
Q. If my appointment is nonrenewed, or I am denied tenure, may I make an appeal on any grounds?
A. Your appeal must allege that the nonrenewal or tenure denial “was based in any significant degree…with material prejudice to the individual” on one or more of the following “impermissible factors”:
Conduct, expressions or beliefs protected by the constitution or principles of academic freedom;
Factors prohibited by state and federal fair employment laws; and
Improper consideration of qualifications, such as failing to consider available performance data, relying on unfounded assumptions about performance or failing to follow procedures. (See, UWS 3.08(1), Wis. Adm. Code.)
The burden of proof falls on the appealing faculty member.
Q. Are there any exceptions to the rule that tenure can only be granted upon the affirmative recommendation of both the department and the chancellor?
A. Yes. There is one exception to this rule, which applies in situations where a department has denied tenure. The so-called “Notestein” rule, named for the legislator who originally introduced the bill creating this exception, allows tenure to be granted without the department’s recommendation where:
The chancellor recommends tenure; and
The standing faculty appeals committee established under section UWS 3.08(1), Wis. Admin. Code, has found that the departmental decision was based on impermissible factors; and
An independent committee has reviewed the candidate and recommended tenure.
This procedure, rarely invoked, provides additional protection to tenure candidates who have met the burden of showing that the tenure denial was based on impermissible factors. (See, RPD 20-23)
Q. With whom does the final institutional decision lie in a tenure case?
A. The chancellor has the final decision in a tenure case at the institutional level.
Q. Under what circumstances can a faculty member be suspended from duties pending the final decision in a disciplinary matter?
A. Although a faculty member would not normally be relieved of that faculty member’s duties during the pendency of a disciplinary matter, a faculty member may be suspended from duties in the following circumstances:
If, after consultation with the appropriate faculty committees, the Chancellor finds that substantial harm to the institution may result if the faculty member is continued in that position; in such a case, the faculty member may be suspended with pay until there is a final decision by the Chancellor or Board of Regents, as appropriate. (See, UWS 4.09, Wis. Admin. Code)
The Chancellor, after consultation with the appropriate faculty governance representatives, may suspend a faculty member where that individual has been charged with a felony which constitutes “serious criminal misconduct” and in accordance with the appropriate sections of the Wisconsin Administrative Code, the Chancellor believes there is a substantial likelihood that the faculty member did engage in the conduct and there is potential harm or risk to the university. In this case, the suspension may be imposed without pay. (See, UWS 7.06, Wis. Admin. Code)
The Chancellor, after consultation with the appropriate faculty governance representatives, may suspend a faculty member where that individual is unable to report to work due to incarceration, conditions of bail or similar cause. In this case, the suspension may be imposed without pay. (See, UWS 7.06, Wis. Admin. Code)
The Chancellor, after consultation with the appropriate faculty governance representatives, may suspend a faculty member where that individual has pleaded guilty or no contest to or has been convicted of a felony that constitutes “serious criminal misconduct” and in accordance with the appropriate sections of the Wisconsin Administrative Code. In this case, the suspension may be imposed without pay. (See, UWS 7.06, Wis. Admin. Code)
Q. When does a faculty member have a right to an open meeting in the context of renewal and tenure decisions?
A. When a faculty member is under consideration for a tenured appointment, that faculty member has to the right to demand that the portion of the meeting dedicated to the presentation of the faculty member’s credentials and qualifications supporting tenure be held in open session. (See, §19.85(1)(b), Wis. Stats.) The statute in fact requires that the faculty member be given actual notice both of any evidentiary hearing which may be held prior to the final action being taken and of any meeting at which the final action may be taken. This notice must indicate that the faculty member has the right to demand that the evidentiary portion of the meeting be held in open session. Id. Only the so-called “evidentiary” may be held in open session; the faculty member does not have a right to require that the deliberative portion be held in open session.
There is no similar legal right for a faculty member whose appointment is under consideration for renewal to demand that such a meeting beheld in open session, unless otherwise provided by institutional policy.
Q. Can faculty be disciplined?
A. Yes. Faculty members can be subject to disciplinary action for violating university rules or policies, or for conduct which adversely affects that faculty member’s performance of duties to the university. Where the allegations are particularly serious, a faculty member can be dismissed for just cause.
Before a faculty member is subject to disciplinary action, however, the law and rules proscribe a comprehensive process involving a formal complaint, investigation or review, and an opportunity for appeal by the faculty member. Throughout the process, the faculty member has the opportunity to provide and receive information relating to the allegations, and to a formal hearing process where certain process rights attach. (See, UWS 6.01, Wis. Adm. Code)
Q. As part of the shared governance process, do faculty have the authority to insist that the Chancellor take a particular action?
A. No. The Wisconsin Statutes provide that under shared governance, faculty, “subject to the responsibilities and powers of the board, the president, and the chancellor of such institution, shall have the primary responsibility for advising the chancellor regarding academic and educational activities and faculty personnel matters.” (§ 36.09(4), Wis. Stats. (emphasis added).)
Q. I’m confused about the difference between a Complaint and a Grievance.
A. Complaints involve claims—made by anyone—against a faculty member that describe conduct which is alleged to violate rules or policies, or adversely affects that faculty member’s performance of duties. (See, UWS 6.01, Wis. Adm. Code). In contrast, a grievance is brought by the individual faculty member and alleges concerns about the terms and conditions of employment as they allegedly apply to that faculty member’s employment.
Q. I’ve heard that the Board’s new Post-Tenure Review policy can lead to my dismissal.
A. Only in very rare cases is that likely to be an outcome.
The “new” Post-Tenure Review Policy is in fact a revision of the former Board Post-Tenure Review policy. The new Policy is intended to promote consistency in the post-tenure review process across the System and to provide a clear process to support and evaluate tenured faculty progress as an extension of annual reviews. The new Policy also describes a process following a determination of “does not meet expectations.” (See, RPD 20-9.)
It is anticipated that serious deficiencies in performance of tenured faculty would not first arise in the context of the Post-Tenure Review, but rather be addressed at an earlier stage, such as during annual reviews or informal discussion. Likewise, the Post-Tenure Review process is not an appropriate avenue to address misconduct.
Q. If I am named in a lawsuit, do I need to hire my own lawyer?
A. Generally speaking, if the allegations of the lawsuit relate to conduct you engaged in as part of the scope of your employment, the UW System, through the Wisconsin Department of Justice, will be able to provide you with legal representation and indemnification. (See sections 893.82 and 895.46, Wis. Stats.) That notwithstanding, the University does not advise on the issue of whether you should hire your own lawyer.
UW System faculty members are unique among state employees by reason of eligibility for tenure, the right to participate in institutional governance, and the protection afforded by academic freedom.
The special employment status of UW System faculty members is consistent with academic tradition, reflecting a nationwide expansion of faculty rights that occurred in the first half of the twentieth century. Tenure gained wide acceptance at that time as a means of fostering freedom in the conduct of research, the free discussion of issues in the classroom and active participation by faculty members in public affairs. The role of faculty members as active participants in the governance of the university also grew during that period. These developments are reflected in tenure systems established at universities throughout the nation.
Faculty rights and responsibilities are governed by state law, administrative regulations, and UW System and institutional policies. For example, state law defines “faculty” (§ 36.05(8), Wis. Stats.), sets out the governing role of faculty (§ 36.09(4), Wis. Stats.), and addresses other aspects of a faculty appointment, such as sabbatical leave (§ 36.11(17), Wis. Stats.) and layoff due to budget or program changes (§ 36.22, Wis. Stats.). The Wisconsin Administrative Code, Chapters UWS 1-8, contain published regulations describing other aspects related to faculty appointments, including appointments, complaints and grievances, and the disciplinary process.
The Board of Regents of the University of Wisconsin System (“Board”) has passed and published a number of policies affecting the faculty. Most recently, in 2016, the Board passed Regent Policy Document (“RPD”) 20-23, Faculty Tenure. This policy codified into policy the repealed section of the Wisconsin Statutes that governs faculty appointments, tenure, and dismissal or cause. At the same time, the Board passed RPD 20-24, Procedures Relating to Financial Emergency or Program Discontinuance Requiring Faculty Layoff and Termination, and RPD 20-9, Periodic Post-Tenure Review in Support of Tenured Faculty Development. Institutional policies pertaining to subject matter addressed in Board policies may not be in conflict with the fundamental aspects of those policies.
Some degree of overlap between laws, regulations, and policies exists and is inevitable; still, state and federal laws prevail and policy language must be read consistent with the laws.