Legal Basis of Faculty and Shared Governance

Prepared by:
Erika Sander
UWM Faculty Rep & UC Chair (2003/04)
August 2004

Note: Legal citations are selected to highlight governance functions; reader is advised to refer to actual legal documentation for complete explication. [See WEB links at end of presentation]

Wisconsin State Statutes: Chapter 36

Chapter 36, entitled "University of Wisconsin System," codifies institutional governance.

We are the only state in the USA to have governance codified in state law!

Chapter 36 is the merged document of the original Chapters 36 (University of Wisconsin) and 37 (Wisconsin State University System); merger was in 1973.

Definitions and Responsibilities:

Faculty (36.05[8]): means persons who hold the rank of professor, associate professor, assistant professor or instructor in an academic department or its functional equivalent in an institution, persons described under s. 36.13(4)(c) and such academic staff as may be designated by the chancellor and faculty of the institution (also known as having "faculty status").

Board of Regents (36.09[1][a]): The primary responsibility for governance of the system shall be vested in the board which shall enact policies and promulgate rules for governing the system, plan for the future needs of the state for university education, ensure the diversity of quality undergraduate programs while preserving the strength of the state's graduate training and research centers and promote the widest degree of institutional autonomy within the controlling limits of system-wide policies and priorities established by the board.

The President (36.09[2]): The president shall be president of all the faculties and shall be vested with the responsibility of administering the system under board policies and shall direct a central administration which shall assist the board and the president in evaluating these policies, in coordinating program development and operation among institutions, in planning the programmatic, financial and physical development of the system, ...

The Chancellors (36.09[3][a]): The chancellors shall be the executive heads of their respective faculties and institutions and shall be vested with the responsibility of administering board policies under the coordinating direction of the president and be accountable and report to the president and the board on the operation and administration of their institutions. Subject to board policy, the chancellors . in consultation with their faculties, shall be responsible for:

Determining academic standards & establishing grading systems

Defining & administering institutional standards for faculty peer evaluation & screening candidates for appointment, promotion & tenure

Designing curricula & setting degree requirements

Recommending individual merit increases

Administering associated auxiliary services

Administering all funds, from whatever source, allocated, generated or intended for use of their institutions

Faculty (36.09[4]: The faculty of each institution, subject to the responsibilities & powers of the board, the president and the chancellor of such institution, shall be vested with the responsibility for the immediate governance of such institution & shall actively participate in institutional policy development. As such, the faculty of each institution shall have primary responsibility for academic & educational activities & faculty personnel matters. The faculty of each institution shall have the right to determine their own faculty organizational structure and to select representatives to participate in institutional governance.

Academic Staff (36.09[4m]) & Students 36.09[5]): both have governance rights & responsibilities over their respective constituent groups and shall "be active participants in the immediate governance of and policy development for the institution."

To summarize Chapter 36:

The Board develops broad strategic initiatives & policies that govern UWS.

The President administers/implements Board initiatives & policies.

The Chancellor & Faculty govern an institution & develop campus policies & procedures.

Faculty have primary purview over academic, educational & faculty personnel matters.

UWM Faculty Senate and Faculty

The UWM Faculty Senate:

takes up all major initiatives, issues & challenges before the faculty at-large and

meets monthly during the academic year

The UWM Facultys meet in September and January.
Special Meetings of either body may be called.

UWM University Committee

The University Committee:

is the executive committee of the faculty senate;

is the "hub" around which all governance activity occurs;

provides leadership to and for the campus faculty; meets and consults regularly with campus leaders and administration;

and ensures that faculty governance rights and responsibilities are pursued.

Faculty Governance Committees

At UWM under Chapter 36, we have both faculty standing & administrative campus committees that work with administration in all venues listed as responsibilities of the chancellor. Examples include:

Academic & Educational Venues:

Academic Program & Curriculum Committee

Academic Policy Committee

Information Technology Policy Committee

Research Policy Committee

Libraries Committee

Budget & Strategic Planning:

Academic Planning & Budget Committee

Physical Environment Committee

Faculty personnel committees:

Department Executive Committee

Divisional Executive Committees

Faculty Appeals & Grievance Committee

Faculty Rights & Responsibilities Committee

Faculty Ethics Committee

Additional committees:

Affirmative Action in Faculty Employment Committee

Athletic Board

Awards & Recognition Committee

Economic Benefits Committee

University Relations Committee

UW System Administrative Code

Currently, there are 22 chapters that have the force of state law; most relevant to faculty governance are:

UWS 2: Faculty rules, coverage & delegation.

UWS 3: Faculty appointments.

UWS 4: Procedures for dismissal.

UWS 5: Layoff & terminations.

UWS 6: Complaints & grievances.

UWS 8: Unclassified staff code of ethics.

UWS Admininstrative Code Chap 2: Faculty Rules, Coverage & Delegation

This pertains to all institutional faculty policies & procedures regarding primarily faculty personnel matters (eg appointments, reviews, complaint/ grievance resolution, dismissal, etc):

Institutional policies must address UWS 3,4,5,6&8.

Institutional policies must be approved by the Board of Regents.

UWS 2.02 Delegation: Rules & procedures developed pursuant to chs. UWS 3,4,5,6 &8 by the faculty of each institution shall be forwarded by the chancellor to the president and by the president to the board for its approval prior to their taking effect. Such policies & procedures, unless disapproved or altered by the regents, shall be in force & effect as rules of the regents.

UWS Administrative Code Chap 3: Faculty Appointments

UWS 3 defines: Types of faculty appointments, Recruiting, Developing rules re: faculty appointments, Probationary appointments, Periodic review/renewal & non-renewal of appointments, Appeal rights & notice periods

Faculty Appointments and Renewal Process

UWS 3.01(1)(a&b): "Tenure" & "Probationary appointment[s]" . are made upon "the affirmative recommendation of the appropriate academic department, or its functional equivalent, and the chancellor of an institution ." In addition, tenure appointments must be approved by the Board of Regents.

An Executive Committee (EC) must affirmatively recommend all appointments, renewals and tenure/promotion actions.

For tenure appointments & "renewal" recommends involving tenure and/or promotion, EC actions go to the dean.

The dean seeks the "advice" of Divisional Committee.

If the divisional advice is at variance with the EC, the EC should forward a "reconsideration" to divisional.

After receiving divisional advice, the dean forwards the recommendation to the Provost & Chancellor.

If the dean's recommendation is at variance with the EC, the dean must consult with the EC to seek resolution.

If the EC, Dean and Chancellor agree, the renewal is approved.

If tenure is involved, the Chancellor transmits the recommend to UWS for Board of Regents approval.

The Board formally approves tenure actions each June; "out of cycle" approvals can be made by the President.

Recruiting

UWS 3.02: The faculty of each institution, after consultation with appropriate students and with the approval of the chancellor, shall develop procedures relating to recruitment of members of the faculty. The procedure shall be consistent with board policy & state & federal laws with respect to nondiscriminatory & affirmative action recruitment.

The procedures shall allow maximum flexibility at the departmental, school & college levels to meet particular needs. In all instances the procedures shall provide for departmental peer review & judgment as the operative step in the recruiting process.

Probationary Appointments

This covers the "7 year" probationary period, including "tenure clock extension" options due to extraordinary circumstances.

Also, leaves of absence, sabbaticals, etc.

Periodic Review

UWS 3.05: The faculty & chancellor of each institution, after consultation with appropriate students, shall establish rules providing for periodic review of faculty performance.

Amplified in Regent Policy (eg teaching evaluations in merit/retention/promotion reviews).

Nonrenewals: reconsideration & appeal

UWS 3.08(1a-c): Appeal of a nonrenewal decision (includes denial of reappointment and/or tenure):

Section covers "impermissible factors"

And, "the decision of the chancellor is final."

A faculty member may appeal an Executive Committee's negative recommendation for use of "impermissable factors," which include:

Conduct, expressions or beliefs protected by federal/state laws or principles of academic freedom; violating laws pertaining to fair employment practices. Improper consideration of qualifications, such as:

Not using procedures required by faculty and/or Board of Regents rules (policies);

Not using data bearing materially on the quality of performance;

Using unfounded, arbitrary or irrelevant assumptions of fact about work/conduct.

Faculty member files the appeal with the University Committee, who transmits to the Faculty Appeals & Grievance Committee for review and hearing (if indicated).

The FAGC recommends back to department, Dean and/or Chancellor.

UWS Administrative Code Chap 4: Procedures for Dismissal

UWS 4: covers dismissal for cause procedures.

A tenured faculty member may be dismissed by the board, only for just cause & only after due notice & hearing.

Non-renewal/non-retention are not "dismissal for cause."

UWS Administrative Code Chap 5: Layoff & Termination - Financial Emergency

UWS 5 covers all elements of layoff and termination, under "financial emergency."

Layoff is "involuntary reduction" and/or "indefinite suspension" in faculty member's employment.

Faculty consultative committee required.

Other elements include "seniority," review & hearings, reappointment, alternative employment, etc.

UWS Administrative Code Chap 6: Complaints & Grievances Complaints:

UWS 6.01: covers complaints & complaint resolution procedures. Specifically:

Institutions must develop rules & procedures to address complaints; rules shall include following elements.

Complaints against faculty may come from various levels, but usually from an Executive Committee.

Complaints are submitted to the University Committee for transmittal to the Faculty Rights & Responsibilities Committee.

FRRC reviews and conducts a hearing (if indicated), and makes a recommendation to the Chancellor.

If complaints involve legal discrimination, including sexual harassment, they may be initially investigated by the Office of Equity & Diversity Services (EDS).

EDS files its findings with the Provost, cross-filing with the UC.

If discipline is contemplated, the UC receives the complaint for transmittal to FRRC. (Note: the Disciplinary Conduct Policy is currently undergoing revision; what is described is current policy practice.)

Grievances:

UWS 6.02: covers grievances. Specifically:

Grievances shall be heard by a designated faculty committee.

Committee conducts fact finding and/or hearing & recommends solutions to the chancellor.

Decision of chancellor is final, subject to petition by a grievant or committee to the Board, who may (emphasis mine) grant a review on the record.

UWS Administrative Code Chap 8: Unclassified Staff Code of Ethics

Outside activities & interests" & reports.

Standards of conduct" including nepotism & personal gain from university position.

Institutional ethics committee- namely, each campus should have a committee whose function shall be to provide any member of the unclassified staff consultation & advice on the application of UWS 8.

Managing conflict of interest and/or commitment (fiduciary or time).

The UWM Faculty Ethics Committee provides confidential advice to all faculty.

For researchers, "Conflict of Interest" is reviewed by a Graduate School administrative committee, which includes members of the Faculty Ethics Committee.

All faculty fill out an annual "Outside Activities Report Form" (about to become WEB-based).

Summary:

The role of the Board is to develop & put into place broad policies & strategic initiatives.

The role of the President is to implement Board policies & initiatives.

The role of the Chancellor, subject to the Board's policies, is to work with their faculty in all policy & operational venues.

Campus level governance:

Appointments, renewals & tenure: both the department executive committee (or equivalent) and chancellor must concur on recommendations.

In dismissal for cause, appropriate faculty committees must be involved and consulted (by chancellor up to Board).

In layoff/termination due to fiscal exigency, the appropriate faculty committee must be consulted and is expected to make recommendations.

In complaints/grievances, appropriate faculty committees must be consulted, may conduct fact-finding/hearings.

In complaints/grievances, chancellor has three options: dismiss, impose discipline, or send to hearing committee (pre or post-discipline).

With "managing conflict of interest," campus must have an "ethics committee" to advise faculty on both fiduciary and time conflicts with faculty duties.

Faculty (peer review) involvement is expected at all levels: campus through Board!

If faculty and administration disagree, both sets of opinions move up (eg chancellor to the Board), with the higher level expected to consult with involved faculty committees.

Closing Thoughts

UWM campus policies:

Provide for maximum faculty protections and adequate peer review.

Support faculty involvement.

Our campus:

Has governance committees that actively work with administration in all campus matters.

Uses AAUP policy statements on Academic Freedom & Responsibility, Ethics, Faculty Workload, etc.

Has adopted the AAUP Statement on Ethics as a Faculty Document.

Useful Links

Wisconsin State Statutes Chapter 36
UWS Administrative Code
American Association of University Professors

Seeking UWM Policy Advice?

For faculty policies and procedures, e-mail or directly contact the University Committee at:
uc@uwm.edu or 229-6225
or the 2005/06 UC Chair, Scott Emmons at semm@uwm.edu or 229-5163.

For academic staff policies and procedures, e-mail or directly contact the Academic Staff Committee at:
ascomm@uwm.edu
or the 2004/05 ASC Chair, Sarine Schmidt at shs@uwm.edu

For all policies, e-mail or directly contact the Secretary of the University, Randy Ryder, at:
randall@uwm.edu or 229-5989.