April 12, 2016

What follows is a summary of a systematic pattern of abject failure by the administration to comply with the rules found in Chapter VI of the Faculty Personnel Rules. I have tried to present it in a manner that will allow the administration to review the record and easily identify each instance, and provide them with an opportunity to reconsider their position, stand up, and right a series of wrongs. It is also written in such a way as to demonstrate to the reader who does not have all of the documentation at hand that such documentation does in fact exist, and I have provided dates for those documents and have quoted from them where useful. The rules cited in this document can be found by clicking here.

It does not matter what the exact nature of the charges was. When I continued to stand up for the rights of students, the administration continued to file formal complaints. According to UWW VI A 1 b: “All proceedings shall be conducted in a climate of presumed innocence; every effort shall be made to preserve the rights and dignity of all parties.”

As you read this document, you might ask yourself two simple questions: If it were me going through this process, and my reputation and livelihood were at stake, would I accept what has occurred as legitimate due process? And if not, am I willing to stand by and allow it to happen to someone else?

“Complaint” 1 filed May 8, 2013

•   This complaint was filed 156 days after the “alleged act” (December 3, 2012), and therefore did not meet the requirements of UWW VI A 3 a (4): “A valid complaint…must be filed with the Chancellor within 120 calendar days of the alleged act or event”. The Dean was aware of this when he filed it, because I told him, but he determined to file it anyway.
•   The complaint did not date the “alleged act”, nor did it specify the “way” or the “manner” in which the alleged conduct affected my performance of obligations to the university, and nowhere are these obligations identified in any way.
•   Despite the fact that the complaint was invalid, and the Chancellor never represented it as valid, he nevertheless responded with a “Letter of Counseling” on June 20, 2013, in which the Chancellor made statements that meet the definitions of penalties or remedies found in UWW VI A 2 f, particular the definition of a “reprimand”. The statements found in this “Letter of Counseling” were later referred to as “directives”, and were referenced in all subsequent charges against me as evidence of insubordination. The “Letter of Counseling” could only have been issued in direct response to the complaint filed by the complainant, which was invalid. It constitutes disciplinary action in response to the invalid complaint, and a clear circumvention of established Faculty Personnel Rules. It is nothing but a Letter of Reprimand by another name. It should never have been issued, and violated my right to due process under those rules because I had no opportunity to appeal. All subsequent charges and penalties are tainted by it.
•   I believe the “Letter of Counseling”, all subsequent references to it, and to insubordination as a result of it should be purged from the record.

Complaint 2 of December 13, 2013

•   The notification of the complaint included the statement that “you have the following rights and protections”. What follows demonstrates that I in fact had no “rights” or “protections”.
•   The complaint did not directly “describe and date the alleged act or event(s)” as required by UWW VI A 3 a (2).
•   The complaint at no time referenced “conflict resolution”, and subsequently the Chancellor directly solicited both parties as to whether conflict resolution was a possibility. This would not have been necessary had the complainant conformed to the requirement found in UWW VI A 3 a (3). The Chancellor did not make a similar solicitation following a subsequent complaint in which the complainant made the required specification. Therefore this compliant was not valid.
•   In the charge the Chancellor stated that “It is also clear that you have not followed the guidance that I provided for you in my letter of June 20, 2013, so you have been insubordinate to me.” This unfairly prejudiced the imposed penalties, as previously noted this “Letter of Counseling” was improper.
•   I did not admit to the charges, but accepted the penalties of a three-day suspension without pay and letter of reprimand, because it did not seem sensible to spend university resources to fight this modest penalty. I believe the letter of reprimand should be purged from my record and my pay restored.

Complaint 3a of September 5, 2014 and Complaint 3b of September 15, 2014

•   These complaints were combined into a single charge, and therefore each separate complaint prejudiced the other. There is no provision to allow such in the Faculty Personnel Rules.
•   The notification of the complaint included the statement that “you have certain rights and protections as more fully described under UWW Chapter VI (copy enclosed)”. What follows demonstrates that I in fact had no “rights” or “protections”.
•   The charge indicated that “it is also clear that you have not followed the guidance that I provided for you in my letter of June 20, 2013, so you have also been insubordinate to me.” This charge and proposed penalties are tainted by the improper “Letter of Counseling”. Throughout all of the proceedings against me the principle of “incremental punishment” has been applied – first “counsel” (reprimand), then three days, then a month, then a semester without pay or benefits. The penalties had nothing to do with the severity of the alleged offense, only with the convenience of the administration in dealing with finding a replacement instructor. The implementation of the penalty in this case was changed by the new Chancellor from “a period of one month…to be served at the start of the spring 2016 semester” (January 19 to February 18) to “a 30-day suspension…these may not be any days you have instructional duties and are to be completed before spring term 2016” and also, remarkably, “you will not be expected to perform any work obligations during this time, except the continuing expectations of your employment.” In other words, you must continue to do your job during the “suspension” but we’re not going to pay you for it. This then became “starting…December 23, 2015 and concluding January 18, 2016” but “you will also be expected to be prepared for teaching classes at the start of Spring session…” The purpose of moving this suspension, in a letter dated December 8, 2015, contrary to the language in the original charge, was obviously to make room for the next penalty, a semester-long penalty. The hearing panel delivered its verdict on that charge December 10, two days after the Chancellor moved the earlier penalty, and the panel did not even meet to discuss the penalties on the later charge until December 18, delivering its verdict December 21.

•   Contrary to the language found in UWW VI A 2 e (3) and (4), the charge did not specify the“way” or the “manner” in which the alleged conduct affected my performance of obligations to the university, and nowhere are these obligations identified in any way. I have never been told what exactly my “behavior” or “conduct” has been, nor how that alleged “behavior” affected my performance of obligation to the university, nor in fact what those obligations even are.
•   On March 4, 2015 I was informed that the Hearing Panel had retained legal counsel despite the explicit language in the Faculty Personnel Rules that this is permissible only if I was to be represented by an attorney. I was not. (UWW VI A 3 d (1) (b) (iv) and others listed in that rule). The panel retained this counsel throughout the process. In a subsequent hearing process while trying to argue that they had inadequate time to prepare because I had not yet informed them of my intention to retain counsel, UW-System counsel admitted they had no right to retain counsel unless I did, apparently unaware of the argument that they had already made here. Apparently the rules are subject to change based on the circumstances.
•   Throughout Chapter VI of the Faculty Personnel Rules, the Chancellor is referred to as “the Chancellor”. Nowhere in the rules is there any definition that provides for the Chancellor to have an agent acting on their behalf. There is only reference to the fact that the Chancellor may be represented by separate legal counsel in the event that I am. Therefore, it is incumbent on the Chancellor to “be present” at the proceedings. (UWW VI A 4 B 4 (c)) There is no indication that the Chancellor was present at any of the proceedings, and therefore every rule which requires participation of “the Chancellor” has been violated. The response to my objection was that this is how it had been done “as long as the Chancellor can remember.” Apparently because this rule has never been followed, it is therefore acceptable to continue not to follow it.
•   The Dean and Director of Human Resources were delegated by the Chancellor to act on his behalf during the hearing process. As one of the complainants, the Dean had no right under UWW VI A 3 f (2) (a), (b) and (c) to have access to certain information that must have been made available to him as the Chancellor’s representative. And surely, as the chief personnel officer on campus, the Director of Human Resources should have some interest in insuring that the Faculty Personnel Rules are followed.
•   UWW A 3 f (3) states that the Chancellor must respond “within 5 calendar days of receipt of the faculty member’s choice to request a hearing”. My response indicating my choice was sent January 5 by email, and therefore the Chancellor received this response on January 5. There are no provisions for the Chancellor being on vacation, and he should either have responded in a timely manner as explicitly mandated by the Personnel Rules, or he should have delegated that responsibility to a representative in his absence. He did neither, and his claim that “when I returned to the office on January 12, 2015, I received your letter dated January 5, 2015” is disingenuous at best, and a transparent attempt to avoid the obvious – the Chancellor’s clear failure to meet the deadline mandated by the Faculty Personnel Rules. As such, his response nine (9) days later does not and cannot constitute “timely handling”.
•   Contrary to the language found in UWW VI A 4 a (1), originally five members and one alternate were named, one member was never a part of the process, and another dropped out after the procedural review, leaving only four members for the remainder of the hearing process.

•   Despite the requirement in UWW VI A 4 b (3) that “the hearing shall begin not more than 60 calendar days after the request for a hearing unless the Chancellor and the faculty member agree to another date”, the first date proposed was not until March 13, 67 days after my request for a hearing on January 5. That was ultimately deferred without my agreement to April 17 and April 24, 102 and 109 days respectively after my request. A later panel (see below) admitted in writing that the hearing panel has no authority to extend the date without consent of both parties. This meets no standard for “timely handling of complaints”.
•   Contrary to UWW VI A 4 b (4) (c), there was never any statement of obligation to be present.
•   Contrary to the language found in UWW VI A 4 b (7) (d), witnesses were heard who had no“firsthand knowledge” of the alleged acts or events. Also, persons whose written statements required cross-examination were not presented. The panel instead reserved the right to determine whether the testimony provided by those who did not have firsthand knowledge would be considered – after they had already testified.
•   Contrary to UWW VI A 4 c (1), although the Hearing Panel’s report was rendered May 6, 2015, that report made no indication that the panel had met any time after the hearing on April 24, which is therefore the date of the “panel’s decision”. Therefore the hearing on penalties was required to have been held by May 8, 2015, it was not scheduled until June 11, 2015, 48 days after the Hearing Panel’s decision, and 34 days late. Even if we accept that the “decision” was not made until it was rendered on May 6, the hearing must have occurred by May 20, and the June 11 date was still weeks late. Both dates also fell after the contract period for nine-month employees, which ended May 19, and therefore in order to participate in this hearing all participants would have had to participate while off contract. Recognizing this, the administration actually offered to pay them a stipend for their service. I declined the $100 to participate in an off-contract disciplinary hearing against me.
•   Despite the fact that the rules require that the institution provide me with any documentation necessary to prepare a defense, the institution stated they could not provide me with information regarding “severity of penalties imposed on other faculty members for similar acts” in time for the June 11, 2015, penalty hearing. Yet the report by the Hearing Panel for that hearing states “only one other UWW VI Hearing was concluded within a five year window and that the complaint leading to the charge was not for a similar act.” This information was provided to the panel and to the Chancellor’s representatives in time for the hearing, but apparently could not be made available to me in time for the hearing.
•   Arbitrary time limits of 90 minutes for both the cross-examination of witnesses and the presentation of cases were imposed on the hearings when no such limits are provided for in the rules. In fact, the rules demand “fair and complete” hearing procedures (UWS 6.01), and “impartial, complete, and comprehensive proceedings” (UWW VI A 4 a 2). Therefore it takes as long as it takes. After my cross-examinations of the “Chancellor’s” witnesses, I was left with 33 minutes to present my entire defense to 223 pages of documentation submitted by the “Chancellor”. I was able to read less than half of my prepared statement. At the end of my 90 minutes, panel members with stopwatches provided a countdown as I read my statement.
•   I believe a ruling that this process did not meet any standard of due process and was fraught with procedural errors is warranted, and as such, under UWW VI A 4 b (6), the process should have been terminated, a report filed, and all copies of the documentation destroyed. I believe all record of this complaint should be expunged from my file, and all lost pay and benefits should be restored to me.

Complaint 4 of January 26, 2015

•   The notification of the complaint included the statement that “you have certain rights and protections as more fully described under UWW Chapter VI (copy enclosed)”.
•   The charge indicates that my conduct continued “despite a letter of counsel from me [the Chancellor]…While these elements were not a part of the investigation…they are relevant to determining an appropriate charge.” Yet again this charge and proposed penalties are clearly tainted by the improper “Letter of Counseling” that never should have been issued.
•   Although the charge states that the Chancellor received the investigator’s report May 14, 2015, and that “I have attached a copy of this report”, it was not attached to either the emailed pdf version or the hard copy that was hand-delivered, which I obtained August 20, 2015 from my departmental mailbox. This violates UWW VI A 2 E (5): “all of the following known as of the date of the charge with the exception of those redactions necessary to protect the identity of a minor:” and (5)(e): “names of persons providing information during the investigation, and (f) unredacted copies of all documents which will be offered in evidence of the charge;”. I was not presented with this document until after I made my claim of such at the procedural hearing, and the deadline to include this with the charge had passed. The Hearing Panel responded that “it is evident from the policy that the language does not explicitly require the enclosure of an investigator’s report,” and that “even though the report was not attached to documents which referenced it, this is a minor procedural error and does not rise to the level of a ‘significant procedural error’”. Of course the investigator later appeared at the hearing and presented his findings in evidence against me. (See below)
•   Because the Investigator’s Report was not attached, and the Chancellor’s charge cited it without quoting it, then contrary to the language found in UWW VI A 2 e (3) and (4), the charge did not specify the “way” or the “manner” in which the alleged conduct affected my performance of obligations to the university. This information is only found in the Investigator’s Report, and nowhere are these obligations identified in any way in the charge itself.
•   My exile in the Fall 2015 semester, and proscriptions against contact with colleagues, violate UWW VI A 3 g (1) (c) (ii): “…request a hearing on the charges in which case the penalties will be held in abeyance until the completion of the hearing process…”. The charge clearly specifies that one of the penalties included cutting off all communication between myself and the department, and the implementation of that penalty despite an ongoing hearing process demonstrates that the penalties were not in fact “held in abeyance”.
•   UWW VI A 4 a (2) states that “the Chair of the Faculty Senate shall…convene an organizational meeting of the potential panel members and alternates…”, but there has never been any indication to me that the alternates were included in any part of the process. When one of the panel members could not later be present at the hearing, neither of the alternates were available, and a third person who had never been named as an alternate attended instead. This “alternate” was not present during any of the earlier proceedings. In the Hearing Panel’s report of the hearing, the chair was careful to include the names of the alternates, and equally careful not to suggest that they attended the organizational meeting as required by this rule. When I objected, the chair of the Hearing Panel indicated that “There is no requirement that the parties be notified of the names of the alternates, nor that they attend all proceedings unless specifically serving as a Hearing Panel member. Therefore, this process has been conducted properly and in accordance with the procedures.” As with so many of the examples cited in this document, a simple reading of this rule demonstrates the chair’s assertion to be false. Also, apparently, it’s not necessary for the alternates to have any idea what’s been going on during the proceedings leading up to the point where they jump in.

•   On October 2, 2015, at the procedural review, counsel for the Chancellor indicated that they desired to extend the process by scheduling the hearing on a date beyond the 60-day requirement found in Faculty Personnel Rules (VI A 4 b (3)), citing concerns that they were not prepared to present a case and could not present their witnesses. I indicated at that time that I would not agree to a later date. At the subsequent teleconference on October 9, 2015, I reiterated my position and stated I would under no circumstances “agree to another date”, as required by the same rule. On October 12, 2015, the Hearing Panel unilaterally determined that a later date would be scheduled despite my unwillingness to agree. When asked by my counsel to provide the legal authority under which the Hearing Panel could do this, none was provided, and in fact, the Chair of the Hearing Panel stated “The Hearing Panel has reviewed UWW VI (A)(4)(b)(3) and agrees that there is no provision for the Chair of the Hearing Panel to unilaterally continue a hearing date beyond the 60 day period. However, in this case, the University has requested an extension of time for purposes of providing a witness at the hearing that is instrumental to their case in chief.” In other words, because the Chancellor was unprepared, despite being notified of my request for a hearing 120 days before the procedural review, I should now allow them extra time to do secure and prepare witness against me. Counsel for the Chancellor indicated that they were only informed of the fact that I was to be represented by an attorney on September 25, 2015. According to the Faculty Personnel Rules, I was not required to notify anyone that I was being represented by an attorney until after the procedural review (UWW VI A 4 b (7) (a) (iii)), which occurred on October 2, 2015, or after the notice of the hearing is issued, which occurred at the earliest November 5, 2015, and after revisions, November 9, 2015. (UWW VI A 4 b (4) (b) (iii)) The Chair of the Hearing Panel first requested that I notify her whether I was seeking representation on September 23, 2015, two days before I formally made that notification, and a week before I was required to.
•   As noted above, throughout Chapter VI of the Faculty Personnel Rules, the Chancellor is referred to as “the Chancellor”. Nowhere in the rules is there any definition that provides for the Chancellor to have an agent acting on their behalf. There is only reference to the fact that the Chancellor may be represented by separate legal counsel in the event that I am. Therefore, it is incumbent on the Chancellor to “be present” at the proceedings. There is no indication that the Chancellor was present at any of the proceedings, and therefore every rule which requires participation of “the Chancellor” has been violated.
•   On November 13, 2015, despite my never agreeing to “another date”, a hearing was held in my absence. According to the report presented by the Chair of the Hearing Panel on December 10, 2015, only four members of the original Hearing Panel were present, and an original panel member was replaced a substitute, who was not one of the original named alternates, and had not participated in any of the previous proceedings, despite being required to do so under UWW VI A 4 a (1) and (2). Also present were three representatives from UW System Legal, one representing the Hearing Panel and two representing the Chancellor. This seems a clear conflict of interest, which the panel’s persistent deference to the interests of the Chancellor only underscores. At no time has the counsel for the Hearing Panel demonstrated any concern about an impartial and straightforward compliance with the rules which is required under UWW VI A 4 a (2) (c): “such counsel shall help the panel conduct impartial, complete, and comprehensive proceedings.” Instead, at every opportunity said counsel either sought to excuse the failure to comply with the rules, or said nothing. One can only conclude that the significance of said counsel’s actions was to protect the interests of the Chancellor and of the Chancellor’s counsel, and therefore they could not have acted impartially. The Chancellor was not there, but according to the report, the former Chancellor “was also present”. The former Chancellor is not listed here as a “witness”, although he would appear as such during the hearing, but as a “participant”. He had no standing to be present during the entire proceedings, as he is not “the Chancellor” any more, and is not legal counsel for “the Chancellor”. If in fact he was present during the entire proceedings, this was improper. The current Chancellor is not listed as having been present at all.

•   As noted earlier, the Investigator’s Report was not provided to me with the charge. The testimony of investigator could only have related to that Investigator’s Report, and this is in fact confirmed in the report of the Hearing Panel, and therefore it was “used in evidence of the charge”. Because it was ultimately provided “in evidence of the charge”, there cannot be an argument now that the exclusion of the Investigator’s Report from the original charge was permissible, and did not “rise to the level of a ‘significant procedural error’”. (See above)
•   The report of the Hearing Panel also indicates that “At the conclusion of the substantive review, the Hearing Panel moved to go into closed session for the purpose of deliberation. At the conclusion of the deliberation, the Hearing Panel unanimously concluded that based upon the evidence presented by the parties, there was a preponderance of the evidence to support all of the charges issued by the University against Professor Henige, as described in the May 21, 2015 letter, with the noted exception below.” Therefore, the “panel’s decision” was made on November 13, 2015, immediately following the hearing. UWW VI A 4 c (1) (b) relative to the subsequent hearing on the penalties states that “such hearing shall commence no more than 14 calendar days after the panel’s decision.” As noted above, that decision occurred on November 13, 2015. Therefore, any hearing regarding the penalties must have occurred by November 27, 2015, but the Chair of the Hearing Panel did not even deliver the report of the Hearing Panel until December 10, 2015. Therefore there was no possible way to comply with the rules regarding the timeliness of the hearing on the penalties.
•   I believe this complaint must also be dismissed on procedural grounds under UWW VI A 4 b (6), that all record of it must be expunged from my record and all lost pay and benefits must be restored to me.

Complaint 5a of March 20, 2015 and Complaint 5b March 24, 2015

•   The Chancellor proposed to resolve both complaints by expanding “the March 17, 2015 reprimand letter to include reference to the additional e-mails sent to members of the Departments.” I have never received any revised letters of reprimand.
•   I believe these charges must also be formally dismissed. With the failure to perform the proposed action by the Chancellor, this seems to be the proper and only resolution. The deadline for either myself or the Chancellor to request a hearing on the matter has now long passed.

It must be apparent by now, after seven pages of obvious failures on the part of the administration to follow its own rules, that this is not a case of a single, minor violation. These failures have been systematic, pervasive and willful, and there is no place for such in any workplace. This is especially true at an institution of higher learning whose faculty are fighting to retain the right to create the very rules that the administration has so spectacularly and deliberately failed to follow. If the Chancellor doesn’t like the rules, and there are flaws, then it is incumbent on the Chancellor to seek changes in those rules, in collaboration with the Faculty Senate, and in accordance with the procedures for making and approving such changes. Until then, just ignoring what you don’t like or have already failed to comply with is not a legitimate option. What has been described above is nothing but a mockery of due process. And because the Chancellors were not present at any of the proceedings, the Chancellors could only rely on the integrity of the hearing processes in order to reach their conclusions, and therefore the Chancellors should have demanded that those hearing processes had the utmost integrity.

I believe that all record of these proceedings must be expunged, and any and all lost pay and benefits must be restored to me. The institution had every right to engage in proceedings against me as long as they followed the rules they themselves presented to me for doing such, and represented to me as my “rights and protections”. They have had every opportunity to stand up and take responsibility for these failures and do the right thing. Instead they have simply completely ignored the rules to further their own interests. It would not surprise me in the least to learn that others on this campus have been similarly treated. And any one of the faculty on this campus could be next.