New complaint rules strip away rights

Chris Henige, Associate Professor of Art History

You may not be aware of this, but on October 6, 2016, the Education Committee of the Board of Regents met to deliberate on sweeping changes to Chapter VI of the Faculty Personnel Rules of the University of Wisconsin-Whitewater regarding Complaints against Faculty. As I read through these proposed changes, which were approved by the Faculty Senate on August 8, 2016 (am I the only one out of the loop on this?), it was abundantly clear that these changes were inspired by the legion of procedural violations of the old rules by the administration and by the Faculty Senate Committee designated to enforce them. If you missed my previous musings on this subject, see the Royal Purple website.

These new rules are shorter and easier to follow, but they strip away just about every right that had accrued to the accused, and places virtually unfettered discretion in the hands of the Chancellor. I have taken the new rules and annotated them in a commentary that can be found at the Royal Purple website.

First, it is now explicitly stated in the rules that people do not have to file and sign their own complaints, “his or her representative” can do so. So a Dean or anyone else could file a complaint on behalf of anyone who does not want to do it themselves. That violates the right of the accused to face their accusers and the right of the accused to seek conflict resolution because that process can only take place between the accused and the “complainant”. Why enter into conflict resolution with someone who is not part of the conflict?

Second, the old rules required the participation of the “Chancellor” and there was no language that allowed for a “designee”. That has changed.

Third, what if you filed a complaint and it got dismissed by the Chancellor summarily and without investigation? Shouldn’t you be able to appeal? The old rules had no such provision, but the new ones state that “If the Chancellor dismisses the complaint for lack of merit or untimeliness…the complainant shall be notified of any rights to appeal said decision under any applicable university or system policy or procedure.” You notice there’s no direct citation of which “policy or procedure” you might resort to – there are none that I could find, and I have had occasion to look.

Fourth, what happened to my right to choose my own advocate?

Fifth, now the Hearing Panel can have legal counsel even if you don’t. Supposedly, that’s to insure that the rules are properly followed, but as you can see in my earlier piece, that made no difference whatsoever. The counsel in those cases made no effort that I could discern to insure the Hearing Panels’ compliance with institutional policy. Would it surprise you to learn that counsel is now our “Chief of Institutional Policy and Compliance”?

Sixth, you are entitled to fair and impartial proceedings, (but the language guaranteeing “comprehensive” proceedings has been stripped) as long as you can refute the Chancellor’s “evidence” and present your own within the newly-instituted “time limits”.

Seventh, if the Chancellor commits multiple procedural errors, you have recourse. The Chancellor will determine if they occurred, and whether they were “substantial” enough to warrant dismissal. Whew…

Eighth, if the Chancellor is hopelessly unprepared to put on their case in the time allotted, it’s okay, because the Chair of the Hearing Panel can now extend the timeline for such proceedings indefinitely and unilaterally. So much for a “timely process” – the new rules add 120 days even without delays.

Ninth, the Chair of the Hearing Panel gets to determine whether you can “request” hearings in open session. Wisconsin Statute 19.85(1)(b) says otherwise.

Tenth, we now have a requirement that a “simple majority” of the panel must conclude that a “preponderance of the evidence” suggests that the allegations are true. Just over 50% must be just over 50% sure. Don’t we deserve a little better than that?

There’s more, and I invite you to look over my annotation of the new rules, rules that affect all faculty at UW-W. The correlation between these new rules and the issues I’ve raised in the past regarding those responsible not following the old ones speaks for itself. If only the Faculty Senate was as interested in sharing these as they have been in getting feedback on other sections of the rules dealing with Post-Tenure Review. Those are the rules that matter. Sadly, neither the last administration, this administration, nor the Faculty Senate have taken any interest at all in insuring compliance with these rules. What makes you think they will in the future?

“…when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their
future security…”

All that’s needed is for slightly over 50% of you to believe that slightly over 50% of my assertions are true.

— Chris Henige, (Still) Associate Professor of Art History (living in exile)