University of Wisconsin-Whitewater Faculty Senate

Resolution FS0607-02

 

The University of Wisconsin-Whitewater Faculty Senate affirms the legal requirement and effectiveness of the Board of Regents’ and the several faculties’ of the University of Wisconsin System working jointly to develop rules relating to faculty dismissal, as such joint effort is required by s. 36.13(3), Wisconsin Statutes, which provides [italics added]:

 

RULES.  The board and its several faculties after consultation with appropriate students shall promulgate rules for tenure and probationary appointments, for the review of faculty performance and for the nonretention and dismissal of faculty members.  Such rules shall be promulgated under ch. 227 [Wisconsin Statutes];

 

and as required by s. 36.13(5), Wisconsin Statutes, which provides [italics added]:

 

PROCEDURAL GUARANTEES.  Any person having tenure may be dismissed only for just cause and only after due notice and hearing.  Any person having a probationary appointment may be dismissed prior to the end of the person’s contract term only for just cause and only after due notice and hearing.  The action and decision of the board in such matters shall be final, subject to judicial review under ch. 227 [Wisconsin Statutes].  The board and its several faculties shall develop procedures for the notice and hearing which shall be promulgated by rule under ch. 227 [Wisconsin Statutes].

 

The University of Wisconsin-Whitewater Faculty Senate understands the importance of rules which effectively and justly govern those infrequent instances in which a faculty member is involved in serious criminal activity which substantially impairs the safety, operation, or integrity of the university.

 

To these ends, the University of Wisconsin-Whitewater Faculty Senate notes that 7.02(1) of ch. UWS 7, Wisconsin Administrative Code that was proposed by the Board of Regents at its June 9, 2006, meeting, defines “serious criminal misconduct” as follows:

 


 

(1)  In this chapter, "Serious Criminal Misconduct" means:

(a)  Being charged with, pleading guilty or no contest to, or being convicted of a felony, in state or federal court, that involves:

1.         Causing serious physical injury to another person;

2.         Creating a serious danger to the personal safety of another person;

3.         Sexual assault;

4.         Theft, fraud or embezzlement;

5.         Criminal damage to property; or

6.         Stalking or harassment; and that

(b)  Clearly poses a substantial risk to the safety of members of the university community or others; or

(c)  Seriously impairs:

1.         The public trust in the university;

2          The university's ability, or the ability of the charged faculty member's colleagues, to fulfill teaching, research or public service missions;

3.         The charged faculty member's fitness or ability to fulfill the duties of his or her position; or

4.         The opportunity of students to learn, do research, or engage in public service.

 


 

The University of Wisconsin-Whitewater Faculty Senate finds that 7.02(1) as proposed defines “Serious Criminal Misconduct” as “Being charged with” a crime, thereby ascribing to the charged faculty member the actual commission of an act not yet established by due process in a court of law, and that such definition thereby establishes as grounds for dismissal mere unproven allegation of offense.

 

The University of Wisconsin-Whitewater Faculty Senate also finds that in its definition of “serious criminal misconduct,” the proposed 7.02(1) ambiguously lists the three criteria as a and b or c, thereby not clearly defining whether a and (b or c) or (a and b) or c shall obtain.

 

If the latter, then the proposed 7.02(1) defines “Serious Criminal Misconduct” as an act which

 


 

Seriously impairs:

1.         The public trust in the university;

2          The university's ability, or the ability of the charged faculty member's colleagues, to fulfill teaching, research or public service missions;

3.         The charged faculty member's fitness or ability to fulfill the duties of his or her position; or

4.         The opportunity of students to learn, do research, or engage in public service,

 


 

a definition so broad as to include almost any action; and

 

The University of Wisconsin-Whitewater Faculty Senate further finds that the proposed 7.06(1)(a) reiterates the assumption of guilt upon the mere fact of charge, thereby establishing grounds for suspension without pay upon no bases established by due process:

 


 

UWS 7.06  Temporary suspension from duties.    (1)  The chancellor, after consultation with appropriate faculty governance representatives, may suspend a faculty member from duties without pay pending the final decision as to his or her dismissal where:

 

(a)  The faculty member has been charged with a felony and the chancellor finds, in addition, that one or more of the elements of serious criminal misconduct listed in s. UWS 7.02(1) are present, and that there is a substantial likelihood that the faculty member has engaged in the conduct as alleged;

 


 

Given these findings, the University of Wisconsin-Whitewater Faculty Senate cannot endorse and does not approve the promulgation of rules in ch. UWS 7, Wisconsin Administrative Code, as proposed by the board at its June 9, 2006, meeting.

 

However, to be able to join the regents in approving a version of UWS 7, the University of Wisconsin-Whitewater Faculty Senate enjoins the Board of Regents of the University of Wisconsin System to amend ch. UWS 7 by revising ch. UWS 7.06(1) to read:

 


 

UWS 7.02  Serious criminal misconduct.   (1)  In this chapter, "Serious Criminal Misconduct" means:

 

(a) Pleading guilty or no contest to, or being convicted of a felony, in state or federal court, that involves:

1.         Causing serious physical injury to another person;

2.         Creating a serious danger to the personal safety of another person;

3.         Sexual assault;

4.         Theft, fraud or embezzlement;

5.         Criminal damage to property; or

6.         Stalking or harassment; and that

 

(b)  Clearly poses a substantial risk to the safety of members of the university community or others; and that

 

(c)  Seriously impairs:

1.         The public trust in the university;

2          The university's ability, or the ability of the charged faculty member's colleagues, to fulfill teaching, research or public service missions;

3.         The charged faculty member's fitness or ability to fulfill the duties of his or her position; or

4.         The opportunity of students to learn, do research, or engage in public service.

 

 


 

and by revising ch. UWS 7.06(1)(a) to read:

 


 

UWS 7.06  Temporary suspension from duties.    (1)  The chancellor, after consultation with appropriate faculty governance representatives, may suspend a faculty member from duties without pay pending the final decision as to his or her dismissal where:

 

(a)  The faculty member has pled guilty or no contest to, or been convicted of a felony and the chancellor finds, in addition, that one or more of the elements of serious criminal misconduct listed in s. UWS 7.02(1) are present; or [. . .]

 


 

The University of Wisconsin-Whitewater Faculty Senate further urge the Board of Regents to make parallel changes to the proposed s. UWS 11.