Chapter UWS 11

UWS 11.26   Suspension from duties in Title IX misconduct dismissal cases.

Subchapter IV — Procedures for Dismissal for Cause in Special Cases – Indefinite Academic Staff Appointments

UWS 11.27   Subchapter IV definition.

UWS 11.28   Dismissal for cause in special cases - indefinite academic staff appointments.

UWS 11.29   Serious criminal misconduct.

UWS 11.30   Reporting responsibility.

UWS 11.31   Expedited process.

UWS 11.32   Temporary suspension from duties without pay.

UWS 11.33   Board review.

subch. I of ch. UWS 11 Subchapter I — General

UWS 11.01 UWS 11.01 Dismissal for cause-indefinite academic staff appointments.

UWS 11.01(1) (1) A member of the academic staff holding an indefinite appointment may be dismissed only for just cause under ss. UWS 11.02 to 11.10 and 11.29 to 11.33 or for reasons of budget or program under ch. UWS 12.

UWS 11.01(2) (2) 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 exists. The burden of proof of the existence of just cause for a dismissal is on the administration.

UWS 11.01(3) (3) Just cause for dismissal includes, but is not limited to, serious criminal misconduct, as defined in s. UWS 11.29.

UWS 11.01(4) (4) Indefinite appointment academic staff 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 11.01 History History: Cr. Register, October, 1975, No. 236, eff. 11-1-75; CR 06-078: am. (1), cr. (3) Register May 2007, No. 617, eff. 6-1-07; CR 20-061: am. (1), (3), cr. (4) Register May 2021 No. 785, eff. 6-1-21; correction in (1), (4) made under s. 35.17, Stats., Register May 2021 No. 785.

UWS 11.015 UWS 11.015 Definitions. In this chapter:

UWS 11.015(1) (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.”

UWS 11.015(3) (3) “Complaint” means an allegation against an academic staff member reported to an appropriate university official.

UWS 11.015(3m) (3m) “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.

UWS 11.015(4) (4) “Consult” or “consulting” means thoroughly reviewing and discussing the relevant facts and discretionary issues.

UWS 11.015(5) (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.

UWS 11.015(6) (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.

UWS 11.015(6m) (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.

UWS 11.015(7) (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.”

UWS 11.015(9) (9) “Sexual assault” means an offense that meets any of the following definitions:

UWS 11.015(9)(a) (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.

UWS 11.015(9)(b) (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.

UWS 11.015(9)(c) (c) “Incest” means sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law as per s. 944.06, Stats.

UWS 11.015(9)(d) (d) “Statutory Rape” means sexual intercourse with a complainant who is under the statutory age of consent as per s. 948.02, Stats.

UWS 11.015(10) (10) “Sexual exploitation” means attempting, taking or threatening to take, nonconsensual sexual advantage of another person. Examples include:

UWS 11.015(10)(a) (a) Engaging in the following conduct without the knowledge and consent of all participants:

UWS 11.015(10)(a)1. 1. Observing, recording, or photographing private body parts or sexual activity of the complainant.

UWS 11.015(10)(a)2. 2. Allowing another person to observe, record, or photograph sexual activity or private body parts of the complainant.

UWS 11.015(10)(a)3. 3. Otherwise distributing recordings, photographs, or other images of the sexual activity or private body parts of the complainant.

UWS 11.015(10)(b) (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.

UWS 11.015(10)(c) (c) Dishonesty or deception regarding the use of contraceptives or condoms during the course of sexual activity.

UWS 11.015(10)(d) (d) Inducing incapacitation through deception for the purpose of making the complainant vulnerable to non-consensual sexual activity.

UWS 11.015(10)(e) (e) Coercing the complainant to engage in sexual activity for money or anything of value.

UWS 11.015(10)(f) (f) Threatening distribution of any of the following, to coerce someone into sexual activity or providing money or anything of value:

UWS 11.015(10)(f)1. 1. Photos, videos, or recordings depicting private body parts or sexual activity of the complainant.

UWS 11.015(10)(f)2. 2. Other information of a sexual nature involving the complainant, including sexual history or sexual orientation.

UWS 11.015(11) (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.

UWS 11.015 History History: CR 06-078: cr. Register May 2007, No. 617, eff. 6-1-07; CR 15-059: r. and recr. Register June 2016 No. 726, eff. 7-1-16; correction in (2), (8) made under 35.17, Stats., Register June 2016 No. 726; CR 20-061: r. and recr. (intro.), r. (2), cr. (3m), r. and recr. (5), (6), cr. (6m), r. (8), r. and recr. (9) to (11) Register May 2021 No. 785, eff. 6-1-21.

subch. II of ch. UWS 11 Subchapter II — Procedures for Academic Staff Dismissal in Non-Title IX Cases

UWS 11.016 UWS 11.016 Subchapter II definitions.

UWS 11.016(1) (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.

UWS 11.016(2) (2) “Sexual harassment” means conduct on the basis of sex that satisfies one or more of the following:

UWS 11.016(2)(a) (a) Quid pro quo sexual harassment.

UWS 11.016(2)(a)1. 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.

UWS 11.016(2)(a)2. 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.

UWS 11.016(2)(b) (b) Hostile environment sexual harassment.

UWS 11.016(2)(b)1. 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.

UWS 11.016(2)(b)2. 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.

UWS 11.016 Note Note: The definitions in this section are intended to apply only to Subchapter II.

UWS 11.016 History History: CR 20-061: cr. Register May 2021 No. 785, eff. 6-1-21; cr. (title) under s. 13.92 (4) (b) 2., Stats., Register May 2021 No. 785.

UWS 11.02 UWS 11.02 Responsibility for charges.

UWS 11.02(1) (1) Whenever the chancellor of an institution receives an allegation which concerns an academic staff member holding an indefinite appointment which appears to be substantial and which, if true, might lead to dismissal under s. UWS 11.01, the chancellor shall request within a reasonable time that the appropriate dean, director, or designee investigate the allegation. For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the chancellor shall direct the Title IX Coordinator, or designee, to initiate an investigation in accordance with applicable policies. The dean, director, or designee shall offer to discuss it informally with the academic staff member, and, if the allegation involves sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, with the complainant and provide information of rights under this chapter. Both the academic staff 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. If such an investigation and discussion does not result in a resolution of the allegation and if the allegation is deemed sufficiently serious to warrant dismissal, the dean, director, or designee shall prepare a written statement of specific charges. A member of the academic staff may be dismissed only after receipt of such a statement of specific charges and, if a hearing is requested by the academic staff member, after a hearing held in accordance with the provisions of this chapter and the subsequently adopted procedures of the institution. If the staff member does not request a hearing, dismissal action shall proceed along normal administrative lines but the provisions of ss. UWS 11.02, 11.08, and 11.09 shall apply. 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.

UWS 11.02(2) (2) Any formal statement of specific 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 formal statement of specific charges involves sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the formal statement shall be provided to the complainant upon request, except as may be precluded by applicable state or federal law.

UWS 11.02 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75; correction in (2) made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1995, No. 474; 2015 Wis. Act 330: am. (2) Register April 2016 No. 724, eff. 5-1-16; CR 15-059: am. (1), (2) Register June 2016 No. 726, eff. 7-1-16; merger of (2) treatments by 2015 Wis. Act 335 and CR 15-059 under s. 13.92 (4) (bm), Stats., Register September 2016 No. 729; CR 20-061: am. Register May 2021 No. 785, eff. 6-1-21.

UWS 11.03 UWS 11.03 Hearing body.

UWS 11.03(1) (1) The chancellor of each institution shall provide for a hearing body charged with hearing dismissal cases and making a report and recommendations under this chapter. Throughout this chapter, the term “hearing body” is used to indicate either a hearing committee or a hearing examiner as designated in the institutional procedures. This hearing body shall operate as the hearing agent for the chancellor 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 fact and decision to the chancellor according to s. UWS 11.07.

UWS 11.03(2) (2) With the concurrence of the faculty and the academic staff advisory committee of each institution, the chancellor may provide that dismissal for cause of a member of the academic staff having teaching responsibilities may be heard by the hearing body specified in s. UWS 4.03. If so provided, the hearing shall be held pursuant to the provisions of ch. UWS 11.

UWS 11.03 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1995, No. 474; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register May 2007 No. 617.

UWS 11.04 UWS 11.04 Hearing. If the staff member requests a hearing within 20 days from the service of the statement of charges (25 days if notice is by first class mail and publication), such hearing shall be held not later than 20 days after the request, except that this time limit may be extended by mutual consent of the parties or by order of the hearing body. The request for a hearing shall be addressed in writing to the hearing body established pursuant to s. UWS 11.03. Service of written notice of hearing on the specific charges shall be provided at least 10 days prior to the hearing.

UWS 11.04 History History: Cr. Register, October, 1975, No. 238, eff. 11-1-75.

UWS 11.05 UWS 11.05 Adequate due process.

UWS 11.05(1) (1) Each institution shall develop policies and procedures to provide for a fair hearing upon request in the event of dismissal. A fair hearing for an academic staff member whose dismissal is sought under s. UWS 11.01 shall include all of the following:

UWS 11.05(1)(a) (a) A right to the names of witnesses and of access to documentary evidence upon the basis of which dismissal is sought.

UWS 11.05(1)(b) (b) A right to be heard in the academic staff member’s defense.

UWS 11.05(1)(c) (c) A right to an advisor, counsel, or other representative, and to offer witnesses.

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: