Chapter UWS 11

UWS 11.05(1)(d) (d) A right to confront and cross-examine adverse witnesses. For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the hearing committee may reasonably restrict the academic staff member and the complainant from questioning each other.

UWS 11.05(1)(e) (e) A verbatim record of all hearings, which might be a sound recording, provided at no cost.

UWS 11.05(1)(f) (f) Written findings of fact and decision based on the hearing record.

UWS 11.05(1)(g) (g) Admissibility of evidence governed by s. 227.45 (1) to (4), Stats.

UWS 11.05(2) (2) 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 academic staff member in s. UWS 11.05 (1) (a) to (g), except as may be precluded by applicable state or federal law.

UWS 11.05 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75; correction made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1995, No. 474; correction in (1) (g) made under s. 13.93 (2m) (b) 7., Stats., Register May 2007 No. 617; CR 15-059: am. (1) (c), (d), cr. (2); Register June 2016 No. 726; correction in (2) under 35.17, Stats., Register June 2016 No. 726, eff. 7-1-16; CR 20-061: am. (1) (intro.), (a), (b), (d) to (f), (2) Register May 2021 No. 785, eff. 6-1-21; correction in (1) (c) made under s. 35.17, Stats., Register May 2021 No. 785.

UWS 11.06 UWS 11.06 Procedural guarantees.

UWS 11.06(1) (1) The following requirements shall also be observed:

UWS 11.06(1)(a) (a) Any person 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 not be qualified to participate as a member of the hearing body.

UWS 11.06(1)(b) (b) The hearing shall be closed unless the staff 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).

UWS 11.06(1)(c) (c) The hearing body 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.

UWS 11.06(1)(d) (d) The burden of proof of the existence of just cause is on the administration or its representatives.

UWS 11.06(1)(dm) (dm) For complaints of sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the standard of proof shall be a preponderance of the evidence.

UWS 11.06(1)(e) (e) If a staff member whose dismissal is sought has requested a hearing, discontinuance of the proceeding by the institution is deemed a withdrawal of charges and a finding that the charges were without merit.

UWS 11.06(1)(f) (f) Nothing in this section shall prevent the settlement of cases by mutual agreement between the administration and the staff member, with the chancellor’s approval, at any time prior to a final decision by the chancellor; or when appropriate, with the board’s approval prior to a final decision by the board.

UWS 11.06(1)(g) (g) Adjournments shall be granted to enable either party to investigate evidence as to which a valid claim of surprise is made.

UWS 11.06(2) (2) If the institutional policies and procedures provide that dismissal cases be heard by a hearing committee, the following requirements shall be observed:

UWS 11.06(2)(a) (a) The 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 hearing committee members disqualify themselves or are disqualified, the remaining members may select a number of replacements equal to the number who have been disqualified to serve, except that alternative methods of replacement may be specified in the policies and procedures adopted by the institution.

UWS 11.06(2)(b) (b) If the 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 policies and procedures adopted by the institution.

UWS 11.06 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75; correction in (1) (b) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 2001, No. 544; CR 15-059: cr. (1) (dm), am. (1) (f), (2) (a) Register June 2016 No. 726, eff. 7-1-16; CR 20-061: am. (1) (a) to (f), (2) (a) Register May 2021 No. 785, eff. 6-1-21; correction in (1) (d) made under s. 35.17, Stats., Register June 2021 No. 786.

UWS 11.07 UWS 11.07 Recommendations: to the chancellor. The hearing body shall send to the chancellor and to the academic staff member concerned, as soon as practicable after conclusion of a hearing, a verbatim record of the testimony and a copy of its report, findings, and recommendations. After reviewing the matter on record and considering arguments if submitted by the parties, the chancellor shall issue a decision. In that decision, the chancellor may order dismissal of the academic staff member, may impose a lesser disciplinary action, or may find in favor of the academic staff member. The academic staff member shall be notified of the chancellor’s decision in writing. In cases involving sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the complainant shall be notified of the chancellor’s decision at the same time as the academic staff member. This decision shall be deemed final unless the board, upon request of the academic staff member, grants review based on the record. For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the complainant shall have all rights provided to the academic staff member in this section.

UWS 11.07 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75; CR 15-059: am. Register June 2016 No. 726, eff. 7-1-16; CR 20-061: am. Register May 2021 No. 785, eff. 6-1-21; correction made under s. 13.92 (4) (b) 7., Stats., Register May 2021 No. 785.

UWS 11.08 UWS 11.08 Suspension from duties. Pending the final decision as to dismissal, the academic staff member with an indefinite appointment shall not be relieved of duties, except where, after consulting with the appropriate administrative officer, the chancellor finds that substantial harm may result if the staff member is continued in the staff member’s position. Where such determination is made, the staff member may be relieved of the staff member’s position immediately, or be assigned to another administrative unit, but the staff member’s salary shall continue until the chancellor makes a decision as to dismissal, unless the chancellor also makes the determinations set forth in s. UWS 11.32 (1) in which case the suspension from duties may be without pay and the procedures set forth in s. UWS 11.32 shall apply.

UWS 11.08 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75; CR 06-078: am. Register May 2007 No. 617, eff. 6-1-07; CR 20-061: am. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.09 UWS 11.09 Date of dismissal. A decision by the chancellor ordering dismissal shall specify the effective date of the dismissal.

UWS 11.09 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75.

UWS 11.10 UWS 11.10 Board review. A member of the academic staff on indefinite appointment who has been dismissed for cause by the chancellor following a hearing may appeal this action to the board. Any appeal must be made within 30 days of the date of the decision of the chancellor to dismiss. Upon receiving an appeal the board shall review the case on the record. Following such review the board may confirm the chancellor’s decision, or direct a different decision, or approve a further hearing before the board with an opportunity for filing exceptions to the hearing body’s recommendations or the chancellor’s decision and for oral argument on the record. If further review with opportunity for oral argument on the record is provided, this review shall be closed unless the staff member requests an open hearing. (See subch. V of ch. 19, Stats., Open Meetings of Governmental Bodies.) All decisions of the board, whether after review on the record or after oral argument, shall be expressed in writing and shall indicate the basis for such decision. For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the complainant shall have the same opportunity to appeal, file exceptions to the recommendations of the hearing committee or chancellor, and oral arguments, as provided to the academic staff member.

UWS 11.10 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75; correction made under s. 13.93 (2m) (b) 7., Stats., Register, April, 2001, No. 544; CR 15-059: am. Register June 2016 No. 726, eff. 7-1-16; CR 20-061: am. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.11 UWS 11.11 Dismissal for cause-fixed term or probationary academic staff appointments. A member of the academic staff holding a probationary appointment, or a member of the academic staff holding a fixed term appointment and having completed an initial specified period of time, may be dismissed prior to the end of the contract term only for just cause or for reasons of budget or program under ch. UWS 12. A nonrenewal of such an appointment is not a dismissal under this section. A dismissal shall not become effective until the individual concerned has received a written notification of specific charges and has been offered an opportunity for a hearing before the appropriate dean or director or designee. If such hearing is requested, a determination of just cause and notification of dismissal shall be made by the dean or director or designee. If no hearing is requested the dismissal is effected by the specifications in the original notification of charges. The hearing before the dean, director, or designee shall provide the academic staff member with an opportunity to present evidence and argument concerning the allegations. Dismissal shall be effective immediately on receipt of written notification of the decision of the dean or director or designee unless a different dismissal date is specified by the dean or director. Dismissals for cause shall be appealable by filing an appeal with the hearing body established under s. UWS 11.03. The burden of proof as to the existence of just cause on appeal shall be on the administration or the authorized official. The provisions of s. UWS 11.04, procedural guarantees, contained in ss. UWS 11.05 and 11.06 and the review provisions of s. UWS 11.07, shall be applicable to the appeal proceeding. In no event, however, shall a decision favorable to the appellant extend the term of the original appointment. If a proceeding on appeal is not concluded before the appointment expiration date, the academic staff member concerned may elect that such proceeding be carried to a final decision. Unless such election is made in writing, the proceeding shall be discontinued at the expiration of the appointment. If the chancellor ultimately decides in favor of the appellant, salary lost during the interim period between the effective date of dismissal and the date of the chancellor’s decision or the end of the contract period, whichever is earlier, shall be restored. In those cases where the immediate supervisor of the academic staff member concerned is a dean or director, the chancellor shall, to avoid potential prejudice, designate an appropriate administrative officer to act for the dean or director under this section. For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, or stalking, the complainant shall have all procedural rights provided to the academic staff member in this section and the standard of proof shall be by a preponderance of the evidence. Dismissal for cause and lesser discipline based on allegations of Title IX misconduct, as defined in s. UWS 11.13, shall be governed by ss. UWS 11.13 to 11.26.

UWS 11.11 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75; CR 15-059: am. Register June 2016 No. 726, eff. 7-1-16; CR 20-061: am. Register May 2021 No. 785, eff. 6-1-21; correction made under s. 35.17, Stats., Register May 2021 No. 785.

UWS 11.12 UWS 11.12 Dismissal for cause-teaching members of the academic staff. The policies and procedures of each institution may provide that dismissal for cause of a member of the academic staff having teaching responsibilities and holding a probationary appointment or a fixed term appointment may proceed under ss. UWS 11.02 to 11.10. If the institutional policies and procedures do not specifically make such provisions, dismissal for cause shall be made pursuant to s. UWS 11.11. Dismissal for cause and lesser discipline based on allegations of Title IX misconduct as defined in s. UWS 11.13 shall be governed by ss. UWS 11.13 to 11.26.

UWS 11.12 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75; CR 20-061: am. Register May 2021 No. 785, eff. 6-1-21; correction made under s. 35.17, Stats., Register May 2021 No. 785.

subch. III of ch. UWS 11 Subchapter III — Procedures for Academic Staff Dismissal and Discipline in Title IX Cases

UWS 11.13 UWS 11.13 Subchapter III definitions. In this subchapter:

UWS 11.13(1) (1) “Complainant” means any individual who is alleged to be the subject of Title IX misconduct, as defined in this section.

UWS 11.13(2) (2) “Education program or activity” means, for purposes of Title IX misconduct only, locations, events, or circumstances over which the university exercised substantial control over both the respondent and the context in which the relevant misconduct occurs, and also includes any building owned or controlled by a student organization that is officially recognized by the university.

UWS 11.13(3) (3) “Formal Title IX complaint” means, for the purposes of 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 an academic staff member and requesting that the institution 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 complaint may be filed in person, by mail, by 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.

UWS 11.13(4) (4) “Respondent” means an individual who has been reported to be the perpetrator of Title IX misconduct as defined in this section.

UWS 11.13(5) (5) “Sexual harassment” means conduct on the basis of sex that satisfies any of the following:

UWS 11.13(5)(a) (a) 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.

UWS 11.13(5)(b) (b) 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, the conduct is so severe, pervasive, and objectionably offensive that it effectively denies the person equal access to the institution’s education program or activity.

UWS 11.13(6) (6) “Title IX misconduct” means sexual assault, stalking, dating violence, or domestic violence as defined in this chapter and sexual harassment as defined in sub. (5).

UWS 11.13 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (intro.) made under s. 35.17, Stats., Register May 2021 No. 785.

UWS 11.14 UWS 11.14 Dismissal for cause or lesser discipline for Title IX misconduct.

UWS 11.14(1) (1) An academic staff member may be dismissed for cause, or subject to lesser discipline, for Title IX misconduct as the term is defined in s. UWS 11.13.

UWS 11.14(2) (2) Title IX misconduct allegations against academic staff shall follow the disciplinary procedure in ss. UWS 11.13 to 11.26. An academic staff member may be dismissed only for just cause and may otherwise be disciplined only after due notice and hearing.

UWS 11.14(3) (3) The board’s policy is that members of the academic staff are entitled to enjoy and exercise all rights of United States citizens and to perform their duties in accordance with appropriate professional codes of ethics. This policy shall be observed in determining whether or not just cause for dismissal, or grounds for other discipline, exists. The burden of proof of the existence of just cause for a dismissal, or grounds for other discipline, is on the administration.

UWS 11.14(4) (4) The academic staff 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.

UWS 11.14 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.15 UWS 11.15 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:

UWS 11.15(1) (1) There is a formal Title IX complaint alleging Title IX misconduct on the basis of sex.

UWS 11.15(2) (2) The conduct occurred in the United States.

UWS 11.15(3) (3) The conduct occurred within the university’s education programs or activities.

UWS 11.15(4) (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 formal Title IX complaint.

UWS 11.15(5) (5) The complainant or Title IX Coordinator have submitted a written formal Title IX complaint.

UWS 11.15 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.16 UWS 11.16 Dismissal of formal Title IX complaint and related appeal.

UWS 11.16(1) (1) The university shall dismiss formal Title IX complaints consisting of allegations that meet any of the following conditions:

UWS 11.16(1)(a) (a) The alleged conduct would not constitute Title IX misconduct if proved.

UWS 11.16(1)(b) (b) The alleged conduct did not occur in a university education program or activity.

UWS 11.16(1)(c) (c) The alleged conduct did not involve actions against someone physically located in the United States.

UWS 11.16(2) (2) The university may dismiss formal Title IX complaints under any of the following conditions:

UWS 11.16(2)(a) (a) The complainant formally requests in writing to withdraw the formal Title IX complaint.

UWS 11.16(2)(b) (b) The academic staff member is no longer employed by the university.

UWS 11.16(2)(c) (c) Specific circumstances prevent the university from gathering evidence sufficient to reach a determination on the allegations contained in the formal Title IX complaint.

UWS 11.16(3) (3) The university generally shall decide whether to dismiss a formal Title IX complaint within 30 days of receipt of the formal complaint, but the university may extend that timeline as necessary. If a formal complaint is dismissed, the university shall provide notice of the dismissal and reasons therefore to the academic staff member and complainant in writing.

UWS 11.16(4) (4) Within 20 days of receipt of the notice of dismissal, the complainant or academic staff member may appeal the dismissal by filing a written appeal with the chancellor. The complainant or academic staff member may appeal on any of the following bases:

UWS 11.16(4)(a) (a) Procedural irregularity that affected the outcome of the matter.

UWS 11.16(4)(b) (b) New evidence that was not reasonably available at the time of the dismissal that could affect the outcome of the matter.

UWS 11.16(4)(c) (c) The university employee making the dismissal decision had a conflict of interest or bias for the academic staff member or against the complainant, or against complainants generally, that affected the dismissal decision.

UWS 11.16(5) (5) The chancellor shall provide the academic staff 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 academic staff member within 30 days of receipt of a written appeal. The chancellor’s decision on the appeal of a dismissal shall be final.

UWS 11.16(6) (6) The dismissal of a formal Title IX complaint does not preclude the university from otherwise pursuing discipline against the academic staff member under other administrative rules or university policies.

UWS 11.16 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.17 UWS 11.17 Investigation of Title IX misconduct allegations.

UWS 11.17(1) (1) Unless the university dismisses a formal complaint, the university shall appoint an investigator to conduct an investigation of the allegations in the formal complaint.

UWS 11.17(2) (2) The investigator shall provide the academic staff member and the complainant with a notice of investigation. The notice shall include all of the following:

UWS 11.17(2)(a) (a) The grievance process, including informal resolution options.

UWS 11.17(2)(b) (b) The allegations of Title IX misconduct with sufficient detail for the academic staff 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.

UWS 11.17(2)(c) (c) A statement affirming the academic staff member is presumed not responsible for the alleged violation until the disciplinary process finds otherwise.

UWS 11.17(2)(d) (d) The academic staff member and complainant have the right to an advisor of their choice.

UWS 11.17(2)(e) (e) The academic staff member and complainant have the right to inspect and review the evidence.

UWS 11.17(2)(f) (f) Information about any code of conduct rules which prohibit the academic staff member or the complainant from knowingly making false statements or submitting false information during the disciplinary process.

UWS 11.17(3) (3) The parties 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.

UWS 11.17(4) (4) The university’s investigator shall do all of the following:

UWS 11.17(4)(a) (a) Provide both the academic staff member and the complainant an equal opportunity to provide witnesses, including fact and expert witnesses, who may be interviewed by the investigators and other inculpatory and exculpatory evidence.

UWS 11.17(4)(b) (b) Not restrict the ability of either the academic staff member or complainant to discuss the allegations under investigation or to gather and present relevant evidence.

UWS 11.17(4)(c) (c) Provide the academic staff 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.

UWS 11.17(4)(d) (d) Provide both the academic staff 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 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 an academic staff member, complainant, or other source, so that the academic staff member and complainant can meaningfully respond to the evidence prior to conclusion of the investigation.

UWS 11.17(5) (5) As part of its investigation and disciplinary process, the university may not access, consider, disclose, or otherwise use an academic staff 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 academic staff member or complainant, unless the university obtains the academic staff member’s or complainant’s voluntary, written consent to do so in relation to the investigation and disciplinary process.