Section 12.05. Review and hearing for indefinite appointments.

 

(1)  An academic staff member with an indefinite appointment whose position is to be eliminated shall be notified in writing and shall, upon request made within 20 days after such notification, be given a written statement of the reasons for the decision within 15 days, including a statement of the reasons for the determination that the budgetary or program needs should be met by curtailing or discontinuing the program in which the individual concerned works. If the academic staff member requests in writing within 20 days after receipt of said statement, he or she shall be entitled to a hearing before the hearing body. However, such a request for hearing shall not forestall a layoff under this section.

(a) The request for hearing shall specify the grounds to be used in establishing the impropriety of the decision.

(b) The staff member shall be given at least 10 days notice of such hearing. Such hearing shall be held not later than 20 days after the request except that this time limit may be extended by order of the hearing body. Anyone who participated in the decision to layoff or who is a material witness shall not serve on the hearing body.

(2)  The academic staff member shall have access to the evidence on which the administration intends to rely to support the decision to layoff and shall be guaranteed the following minimal procedural safeguards at the hearing:

(a) A right to be heard in his or her defense;

(b) A right to counsel and/or other representatives, and to offer witnesses;

(c) A right to confront and cross-examine adverse witnesses;

(d) A verbatim record of all hearings, which might be a sound recording, provided at no cost;

(e) Written findings of fact and decision based on the hearing record;

(f) Admissibility of evidence governed by s. 227.45 (1) to (4) , Stats.;

(g) The hearing shall be closed unless the staff member whose position is to be eliminated requests an open hearing, in which case it shall be open (see subch. V of ch. 19 , Stats., Open Meeting Law);

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

(3)  If the institutional policies and procedures provide that the review and hearing be conducted by a committee, the following requirements shall be observed:

(a) The committee may, on motion of either party, disqualify any one of its members for cause by a majority vote. If one or more of the committee members disqualify themselves or are disqualified, the remaining members may select a number of other replacements equal to the number who have been disqualified to serve;

(b) If the 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 carry out such responsibilities as shall be determined by the committee within the policies and procedures adopted by the institution.

(4)  The first question to be considered in the review is whether one or more of the following factors improperly entered into the decision to layoff:

(a) Conduct, expressions, or beliefs on the staff member's part which are constitutionally protected or actions which are consistent with an appropriate professional code of ethics;

(b) Employment practices prescribed by applicable state or federal law; or

(c) Improper consideration of the qualifications of the staff member. For the purposes of this section, "improper consideration" occurs if material prejudice resulted from any of the following:

1. The procedures required by the chancellor or board were not followed;

2. Available data bearing materially on the quality of the staff member's actual or potential performance were not considered; or

3. Unfounded, arbitrary, or irrelevant assumptions of fact were made about work or conduct.

(5)  The staff member shall present evidence on whether one or more of the factors specified above improperly entered into the decision to layoff. The hearing body shall then consider whether the evidence presented establishes a prima facie case that such factor or factors did enter significantly into the layoff decision. If the hearing body finds that a prima facie case has not been established, the layoff decision shall be found to have been proper and the hearing shall be ended.

(6)  If the hearing body finds that a prima facie case has been established, the appropriate administration officer for the operational area shall be entitled to present evidence to support the layoff decision, and, thereafter, the staff member may present evidence in rebuttal. Thereafter, on the basis of all the evidence presented, the hearing body shall make its determinations as follows:

(a) The hearing body shall first consider whether one or more of the above specified factors improperly entered into the decision to layoff. Unless the body is convinced that such factor or factors did improperly enter into that decision, the body shall find the decision to have been proper;

(b) If the hearing body is convinced that such factor or factors entered into the decision to layoff, then the body shall find that decision to be improper, unless the body is also convinced 1) that there was a bona fide program or budgetary reason(s), and that the determination of such reason(s) was made in the manner prescribed by, and in accordance with, the standards established by the institution; and 2) that the decision to layoff the particular academic staff member was in accordance with the provisions of s. UWS 12.02 .

(7)  In determining whether a bona fide budgetary or program reason existed for layoff of the appointment of the academic staff member concerned, the hearing body shall presume that the decision to curtail the program was made in good faith and for proper reasons. The hearing body shall not substitute its judgment or priorities for that of the administration.

(8)  If the hearing body finds that the layoff was improper, it shall report this decision and its recommendation to the chancellor and to the staff member. The chancellor shall review the matter, decide whether the staff member should be laid off, and notify the hearing body and academic staff member of the decision. This decision shall be deemed final unless the board, upon request of the academic staff member, grants review based on the record.

History: Cr. Register, October, 1975, No. 238 , eff. 11-1-75, correction in (2) (f), made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1995, No. 474 ; correction in (2) (g) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 2001, No. 544 ; correction in (1) (f) made under s. 13.93 (2m) (b) 7., Stats., Register May 2007 No. 617 .