Chapter UWS 11

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.

UWS 11.17(6) (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.

UWS 11.17 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (2) (b), (4) (c) made under s. 35.17, Stats., Register May 2021 No. 785.

UWS 11.18 UWS 11.18 Review of evidence.

UWS 11.18(1) (1) Prior to completion of the final investigative report, the investigator shall send to the academic staff member and complainant and their respective advisors, if any, the evidence gathered during the investigation for inspection and review by the academic staff 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 academic staff member, complainant or other source to permit the academic staff member and complainant to meaningfully respond to the evidence prior to conclusion of the investigation.

UWS 11.18(2) (2) The academic staff member and the complainant shall have 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.

UWS 11.18 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.19 UWS 11.19 Final investigative report. The investigator shall create a final investigative report that fairly summarizes relevant evidence and send the report to the academic staff 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 academic staff member and complainant at least 10 days prior to a hearing. 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 the academic staff member and the complainant both waive, in writing, the right to such a hearing.

UWS 11.19 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.20 UWS 11.20 Standing academic staff committee and hearing examiner.

UWS 11.20(1) (1) The chancellor of each university, in consultation with academic staff representatives, shall adopt policies providing for the designation of a Title IX misconduct hearing examiner. The chancellor shall select hearing examiners pursuant to these policies to hear academic staff dismissal and discipline cases. Additionally, the academic staff of each university shall provide a standing hearing committee charged with hearing academic staff dismissal and discipline cases. The chancellor shall appoint the presiding member of the hearing committee, who may be a hearing examiner. The academic staff member shall have the right to decide whether a hearing examiner or a hearing committee will hear the matter.

UWS 11.20 Note Note: The last sentence of sub. (1) should read “the university”, not “the academic staff member.” The intent was for the university to make this decision. This will be corrected in future rulemaking.

UWS 11.20(2) (2) The hearing committee or the hearing examiner 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 no 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.

UWS 11.20 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.21 UWS 11.21 Adequate due process.

UWS 11.21(1) (1) A fair hearing for an academic staff member against whom dismissal or other discipline is sought shall include all of the following:

UWS 11.21(1)(a) (a) Service of written notice of a live hearing on the allegations in the formal complaint at least 10 days prior to the hearing.

UWS 11.21(1)(b) (b) A right to the names of witnesses and of access to documentary and other evidence which serve as the basis for seeking dismissal or other discipline.

UWS 11.21(1)(c) (c) A right for the complainant and academic staff member to be heard on their own behalf.

UWS 11.21(1)(d) (d) A right to an advisor, counsel, or other representatives, and to offer witnesses. The academic staff member’s or complainant’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 academic staff member does not have an advisor, the university shall provide the academic staff member, without charge, an advisor of the university’s choice to conduct cross-examination on behalf of the academic staff member. The advisor may be an attorney.

UWS 11.21(1)(e) (e) A right to confront and cross-examine adverse witnesses. The academic staff member’s or complainant’s advisor shall conduct cross examination directly, orally, and in real time. The academic staff member and the complainant may not personally conduct cross examination. If the academic staff 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 academic staff 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 an academic staff member, complainant, or witness from the hearing or refusal to answer cross-examination or other questions.

UWS 11.21(1)(f) (f) A verbatim record of all hearings, which might be a sound recording, made available at no cost for inspection and review.

UWS 11.21(1)(g) (g) Written findings of fact supporting the decision based on the hearing record. The written findings of fact and decision shall include all of the following:

UWS 11.21(1)(g)1. 1. Identification of the allegations potentially constituting Title IX misconduct.

UWS 11.21(1)(g)2. 2. A description of the procedural steps taken from the receipt of the formal complaint through the hearing committee’s or hearing examiner’s decision, including any notifications to the academic staff member and the complainant, interviews with the academic staff member, the complainant, and witnesses, site visits, methods used to gather evidence, and hearings held.

UWS 11.21(1)(g)3. 3. Conclusions regarding the application of the university’s conduct rules and policies to the facts including the following: a determination regarding responsibility for each allegation and the rationale behind each decision, any disciplinary sanction recommended to be imposed, any remedies recommended to restore or preserve equal access to the university’s educational program or activity, and the university’s procedures and permissible bases for complainant and academic staff member to appeal.

UWS 11.21(1)(h) (h) Admissibility of evidence is governed by s. 227.45 (1) to (4), Stats. Only relevant questions may be asked of the academic staff 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 academic staff 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 academic staff member and are offered to prove consent.

UWS 11.21(1)(i) (i) Upon the academic staff member’s request, the university shall provide for the hearing to occur with academic staff member and complainant located in separate rooms with technology enabling the hearing committee or hearing examiner, the academic staff member, and the complainant to simultaneously see and hear witnesses answering questions.

UWS 11.21(2) (2) The complainant shall have all the rights provided to the academic staff member in sub. (1) (a) to (i).

UWS 11.21 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (1) (h) made under s. 35.17, Stats., Register May 2021 No. 785.

UWS 11.22 UWS 11.22 Procedural guarantees.

UWS 11.22(1) (1) Any hearing held shall comply with the requirements set forth in UWS 11.21. All of the following requirements shall also be observed:

UWS 11.22(1)(a) (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.

UWS 11.22(1)(b) (b) The standard of proof shall be a preponderance of the evidence.

UWS 11.22(1)(c) (c) No academic staff member who participated in the investigation of allegations leading to the filing of a statement of charges, or who participated in the filing of a statement of charges, or who is a material witness, shall be qualified to sit on the hearing committee in that case.

UWS 11.22(1)(d) (d) No university employee or other person who participated in the investigation of allegations leading to the filing of a statement of charges, or who participated in the filing of a statement of charges, or who is a material witness, shall be qualified to serve as the hearing examiner in that case.

UWS 11.22(1)(e) (e) The hearing shall be closed unless the academic staff member requests an open hearing, in which case it shall be open.

UWS 11.22 Note Note: This right was intended to be given to the complainant as well. This will be corrected in future rulemaking.

UWS 11.22 Note Note: See subch. V of ch. 19, Stats., Open Meetings of Governmental Bodies.

UWS 11.22(1)(f) (f) The hearing committee may, on motion of the complainant or the academic staff 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 academic staff 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 academic staff establishing the standing committee under this rule.

UWS 11.22(1)(g) (g) 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 11.21 (1) (h).

UWS 11.22(1)(h) (h) 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 academic staff of the institution in establishing the standing academic staff committee under this policy.

UWS 11.22(1)(i) (i) Nothing in this section shall prevent the settlement of cases by mutual agreement between the university administration, the complainant, and the academic staff member.

UWS 11.22(1)(j) (j) Delay or adjournment of the hearing for good cause may be granted. Good cause includes any of the following:

UWS 11.22(1)(j)1. 1. The need to investigate evidence as to which a valid claim of surprise is made.

UWS 11.22(1)(j)2. 2. To ensure the presence of the academic staff member or the complainant, an advisor, or a witness.

UWS 11.22(1)(j)3. 3. To provide language assistance or accommodation of disabilities.

UWS 11.22(1)(j)4. 4. To accommodate concurrent law enforcement activity.

UWS 11.22 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (intro.) made under s. 13.92 (4) (b) 3., Stats., Register May 2021 No. 785.

UWS 11.23 UWS 11.23 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 academic staff 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.

UWS 11.23 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.24 UWS 11.24 Chancellor’s decision.

UWS 11.24(1) (1) After reviewing the matter on record and considering any arguments submitted by the parties, the chancellor shall issue a decision. 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. 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. 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. 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 or complainant, grants review based on the record.

UWS 11.24(2) (2) The chancellor’s decision shall be based on the record created before the hearing committee or hearing examiner, and the chancellor shall include the chancellor’s rationale in the decision. The chancellor’s decision shall be simultaneously sent to the academic staff member concerned, the complainant, and to the hearing committee or the hearing examiner within 45 days of the chancellor’s receipt of the hearing committee’s or hearing examiner’s materials. A decision by the chancellor ordering dismissal shall specify the effective date of the dismissal.

UWS 11.24 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (2) made under s. 35.17, Stats., Register May 2021 No. 785.

UWS 11.25 UWS 11.25 Appeal to the board.

UWS 11.25(1) (1) The academic staff member or complainant may file an appeal of the chancellor’s decision to the board. Any appeal must be made within 30 days of the date of the decision of the chancellor to dismiss. The board shall provide the academic staff member and complainant an opportunity for filing written exceptions to the chancellor’s decision, and for oral arguments, unless the academic staff 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 academic staff member or the complainant requests an open hearing.

UWS 11.25 Note Note: See subch. V of ch. 19, Stats., Open Meetings of Governmental Bodies.

UWS 11.25(2) (2) The academic staff member or complainant may file exceptions to the chancellor’s decision, and the board shall conduct its review of the chancellor’s decision, on any of the following bases:

UWS 11.25(2)(a) (a) Procedural irregularity that affected the outcome of the matter.

UWS 11.25(2)(b) (b) New evidence that was not reasonably available at the time of the live hearing that could affect the outcome of the matter.

UWS 11.25(2)(c) (c) Conflict of interest or bias for or against the academic staff 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.

UWS 11.25(3) (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.

UWS 11.25(4) (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 academic staff member and the complainant of the board’s final decision, which shall include the board’s rationale for its decision.

UWS 11.25(5) (5) A decision by the board ordering dismissal of an academic staff member shall specify the effective date of the dismissal.

UWS 11.25 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (1) made under s. 35.17, Stats., Register May 2021 No. 785.

UWS 11.26 UWS 11.26 Suspension from duties in Title IX misconduct dismissal cases. Pending the final decision as to dismissal, an academic staff member with an indefinite appointment may 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 11.26 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21.

subch. IV of ch. UWS 11 Subchapter IV — Procedures for Dismissal for Cause in Special Cases – Indefinite Academic Staff Appointments

UWS 11.27 UWS 11.27 Subchapter IV definition. In this subchapter, “affected party” means any student, employee, visitor, or an individual participating in a university program or activity, who is a victim of an academic staff member’s serious criminal misconduct.

UWS 11.27 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.28 UWS 11.28 Dismissal for cause in special cases - indefinite academic staff appointments. A member of the academic staff holding an indefinite appointment may be dismissed for serious criminal misconduct, as defined in s. UWS 11.29.

UWS 11.28 History History: CR 06-078: cr. Register May 2007 No. 617, eff. 6-1-07; CR 20-061: renum. from UWS 11.101 and am. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.29 UWS 11.29 Serious criminal misconduct.

UWS 11.29(1) (1) In this chapter, “serious criminal misconduct” means:

UWS 11.29(1)(a) (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:

UWS 11.29(1)(a)1. 1. Causing serious physical injury to another person.

UWS 11.29(1)(a)2. 2. Creating a serious danger to the personal safety of another person.

UWS 11.29(1)(a)3. 3. Sexual assault.

UWS 11.29(1)(a)4. 4. Theft, fraud or embezzlement.

UWS 11.29(1)(a)5. 5. Criminal damage to property.

UWS 11.29(1)(a)6. 6. Stalking or harassment.

UWS 11.29(1)(b) (b) A substantial risk to the safety of members of the university community or others is posed.

UWS 11.29(1)(c) (c) The university’s ability, or the ability of the academic staff member’s colleagues, to fulfill teaching, research or public service missions is seriously impaired.

UWS 11.29(1)(d) (d) The academic staff member’s fitness or ability to fulfill the duties of their position is seriously impaired.

UWS 11.29(1)(e) (e) The opportunity of students to learn, do research, or engage in public service is seriously impaired.

UWS 11.29(2) (2) Conduct, expressions, or beliefs which are constitutionally protected, or protected by the principles of academic freedom, shall not constitute serious criminal misconduct.