WHAT TO EXPECT WHEN YOU FILE AN APPEAL
If a grievance or appeal is not resolved satisfactorily at the unit or dean/director level, an academic staff member may appeal to the Academic Staff Appeals Committee (ASAC). The Academic Staff Appeals Committee has prepared this document clarify what happens during the appeals process. While this description is neither exhaustive nor prescriptive, it provides a picture of what to expect.
Please note that the UW-Madison Academic Staff Policies and Procedures (ASPP) govern the appeal process and that the ASAC has a set of Operating Guidelines; both supersede this document. Both documents are available from the Secretary of the Academic Staff..
After reviewing these documents, appellants or supervisors who have additional questions about the appeal procedure should contact the Secretary’s office (263-2985)..
REVIEW VS. HEARING
Appeals vary by the nature of the appeal – e.g., grievance, nonrenewal, layoff, or dismissal –
and by the type of procedure that applies – a review or a hearing.
Reviews are conducted for appeals of grievances of discipline not involving loss of pay, other grievances, or nonrenewals. A review is somewhat less formal than a hearing. Both the employee and the employer have the option of making an oral presentation to the ASAC. Each side usually receives up to 30 minutes for its presentation; since the burden of proof in a review is on the employee, the employee speaks first. The presentations are followed by up to 10 minutes of rebuttal or summary for each side. There are no witnesses. Members of the panel usually ask questions after each presentation.
Hearings are held for appeals of grievances of discipline involving loss of pay, layoffs, or dismissals for cause. A hearing is formal and is tape-recorded. Both sides are usually represented by counsel, and witnesses are examined and cross-examined. Since the burden of proof is on the employer, witnesses for the employer are called first, and each may be cross-examined or later recalled by the appellant. Witnesses for the employee are called next. There are no time limits. Panel members may question the witnesses. At the conclusion of the testimony, each side may provide a rebuttal or summary statement.
Initial Letter from the ASAC Chair
After an appeal has been forwarded by the Secretary to the chair of the ASAC, the chair sends a letter to the appellant and the employer. This letter will:
- state the issue to be decided,
- state the remedy sought by the appellant
- identify the documents that constitute the written record of the case and provide directions for further submissions
- cite the appropriate sections of the ASPP that apply to the appeal, and request certain information of the parties.An example of a typical letter for a review is attached (see Attachment A).
It is important to comply with the deadline date for additional submissions stated in the initial letter from the ASAC chair. Attempted submissions during the hearing disrupt the hearing process and are unfair to both parties.
Pre-Review and Pre-Hearing Conferences
Pre-Review Conference. The ASAC chair will determine whether a pre-review conference is necessary, after receiving responses to his/her initial letter.
Pre-Hearing Conference. The ASAC chair and ASAC’s legal counsel hold a conference with the representatives of the parties (e.g., attorneys) to schedule the hearing, exchange lists of witnesses, and resolve any questions relating to documents submitted or stipulations of fact.
It is essential in either a review or a hearing that the issue or question be clear to both parties and the ASAC. The conference will also finalize the statement of the relevant issue or issues before the ASAC, usually in the form of a question to which the ASAC will provide an answer in its recommendation to the provost. All communications from the employer and/or appellant regarding an appeal shall be in writing with a copy provided to the other side.
Confidentiality. In the interest of fairness to both parties to an appeal, neither the ASAC chair nor any members of the ASAC will discuss the appeal with either party apart from a pre-review or pre-hearing conference.
The ASAC chair will send a letter to the parties announcing the date, time, and place of the review or hearing. The letter will also make it clear which party has the burden of proof in the matter.
Each review or hearing will be considered and voted upon by a “panel” consisting of at least a simple majority of eligible ASAC members, usually five. The composition of each panel will be assigned by the chair or his/her designee. A committee member may recuse her/himself from participation in any matter before the ASAC if he/she has reason to believe that doing so is in the best interest of any party to the matter.
Conduct of the Review or Hearing
Open vs. closed meeting. The review or hearing shall be a closed meeting unless the appellant has requested an open meeting. In a closed meeting, present in the room are only the ASAC panel members, ASAC counsel, the appellant, the supervisor and/or dean, and counsel or representation for each side, if any. The Secretary of the Academic Staff may attend, but does not participate in the proceeding. In a hearing, any witnesses wait outside the room until called on a schedule prepared by the parties. If an appellant requests an open meeting, anyone can attend.
Representation. Both the appellant and the employer have a right to representation. It is not necessary to be represented by an attorney in a review. If an appellant is represented by an attorney, the employer is represented as well. In the case of a hearing, it is advisable for the appellant to have an attorney. The employer always has an attorney in a hearing, where the burden of proof is on the employer. The ASAC also has legal counsel to advise the panel during the proceedings. The legal counsel for the ASAC is impartial and does not represent either party.
Witnesses. In the case of a hearing, if witnesses are to be called, the names of the witnesses should be sent to the other side within a reasonable time before the hearing, but no later than the date specified in the letter from the ASAC chair.
Opening statement. At the beginning of a review or hearing, the ASAC chair reads a formal statement that will generally include the following:
- The chair will issue a greeting.
- The chair will state that this is a review or hearing before the University of Wisconsin-Madison Academic Staff Appeals Committee under the jurisdiction of appropriate sections of ASPP and that conduct of the review or hearing is governed by sections of ASPP.
- Unless the appellant has requested an open meeting, the chair will entertain a motion for the Committee to conduct the review or hearing in closed session, and if the motion is carried, will state that the review or hearing is now in closed session.
- The chair will state for the record the date, time, and location of the proceeding and will identify himself or herself and name the other members of the panel.
- The chair will name the employer, the appellant, and the actions by the parties leading to the appeal.
- The chair will state the issue before the panel.
- The chair will identify the documents that constitute the record in the case.
- If the parties have indicated they will be making a presentation to the committee, the chair will note for the record the identities of those appearing for each side.
- The chair will state which party has the burden of proof. The party having the burden will present first. In a review the chair will state the time allowances for the presentations and summaries. In a hearing the chair will state the procedures for the testimony of witnesses and cross-examination.
- The chair will state that following the presentations, the Committee will recess in closed session to deliberate and make its recommendations concerning the matter.
- Finally, the chair will ask whether either party has any matters to raise before proceeding with the review or hearing.
During the proceedings the ASAC chair is in charge. The chair will direct the parties to begin and end their presentations. The chair will decide any matters that arise during the proceeding, and the ruling of the chair prevails. The party having the burden will make the first presentation, followed by the responding party. After the presentation each party will have time for rebuttal or summary. In a hearing, if witnesses are called, a reasonable amount of time for cross-examination shall be provided. The panel members may also ask questions of the witnesses, as they deem necessary. After completion of the rebuttal phase of the review or hearing, the parties are excused and the panel members remain in session to deliberate their recommendation on the question. The deliberations are usually concluded the same day.
The panel will continue its review and deliberate its decision, which is based on the written record and the oral presentations. Per ASPP 9.03, “The Committee shall seek any additional information it needs to reach a decision.” If panel members feel they need additional information, they may request it through the Secretary. When ready to vote on the question, the chair asks for a vote by a show of hands. Votes in favor and opposed are recorded. A simple majority decides the panel’s recommendation to the provost.
The recommendation to the provost is drafted by the chair in consultation with the ASAC counsel and is reviewed by all panel members for accuracy. On occasion the opinions of the minority on the panel are noted in the recommendation. Once agreement is reached, the recommendation is signed by the chair and forwarded to the provost for his consideration. By agreement with the ASAC, the provost has made it a practice to consult with the ASAC chair if considering overturning the recommendation of the ASAC.
SUGGESTIONS FOR PARTICIPANTS
- When considering the amount of written documentation to provide to the panel, submit only sufficient documentation to support your position. More is not necessarily better.
- Make an oral presentation. It is advisable to make an appearance before the panel to support your case, in order to highlight the main points supporting your position, and to answer questions.
- Be organized. Prepare your line of argument and have references to documents and exhibits ready. Omit references that are not germane to the question before the panel.
- In a review, it is helpful to provide a written summary of your presentation to assist the panel in its subsequent deliberations. The summary should neither introduce new evidence nor make reference to documents not part of the case or to hearsay testimony.
- Introduce no surprises. All documentation must be identified, submitted, and exchanged before the review or hearing. Names of all witnesses must be exchanged prior to a hearing.
- Be timely. Observe deadlines.
- Maintain a professional demeanor.
Prepared by Dennis Auburn Hill, former Chair, ASAC
ATTACHMENT A: A typical letter for a review
In the matter of: Grievance Appeal of Mr/s. Appellant
Dear Mr/s. Appellant and Dean Employer:
By memo to the Academic Staff Appeals Committee [“ASAC”] dated [date] Mr/s. Appellant has appealed to the ASAC the decision by Dean Employer in his/her memo of [date] to deny his/her grievance. Mr/s. Appellant had formally initiated this grievance by letter to Mr. Immediate Supervisor, [Title], on [date.] In his/her letter of [date] to the ASAC Mr/s. Appellant has indicated the remedy he/she seeks “…is a promotion to Senior Title, effective [date.]”
As chair of the ASAC, I am writing to advise you of procedures associated with a review of this matter and to ask you to provide certain information in preparation for conducting the review.
My understanding of the issue to be decided is:
Was the decision to deny Mr/s. Appellant a promotion to Senior Title arbitrary, capricious, made for reasons prohibited by law or in violation of ASPP?
If either of the parties disagrees with the issue, please send a letter to me by [date], with a copy to the other party, stating succinctly how the issue should be stated and your reason for the change. If there is disagreement, it must be resolved prior to the review or hearing.
Under Academic Staff Policies and Procedures [“ASPP”] section 7.02 (1)(c), ASAC shall conduct a review in accordance with ASPP chapter 9. This being a grievance other than one involving discipline resulting in loss of pay, the ASAC shall conduct a review per section ASPP 9.03.
Conduct of the review is governed by sections ASPP 9.03 and 9.05 (1) and (3 – 7). As I understand it, each of you has a copy of ASPP chapters 7 and 9. If not, please advise me and I will arrange for you to receive a copy. Per section ASPP 7.02 (3)(a) “The employee has the burden to show by a preponderance of the evidence that the action being grieved is arbitrary, capricious, for reasons prohibited by law, or in violation of ASPP.”
I am enclosing a copy of the operating procedures that have been adopted by the ASAC under the authority of section ASPP 9.02 and that apply to this review.
Our operating procedures provide that the review must be heard by at least a majority of eligible members. Depending upon when the review will be held, we will determine which Committee members shall hear it.
Note the following points in preparing your reply.
I am assuming that the address listed above is your correct address. If your address is different, please provide it.
As provided in section ASPP 9.03, the ASAC shall review the written record of this case. We understand the written record of this case to this point to include at least the items specified as attachments and exhibits in the Secretary’s[date] memorandum to me.
Please confirm that these documents constitute the written record of the case. If you dispute inclusion of any document, indicate this in your reply. If you believe that there are other documents that are part of the record, please submit them with your reply and copy the other side. In either case, the other side will be given an opportunity to respond, and I will notify you of when a response must be submitted.
The ASAC will decide what documents constitute the record of this case before the review is conducted. Please submit any additional documents no later than [date.] This date must be observed with regard to the submission of documents, and no document will be accepted for consideration after this date, except for good cause shown.
Section ASPP 9.03 establishes that the review shall be fair, impartial, and timely. A fair and impartial review involves the procedural guarantees set forth in section ASPP 9.05(1).
Does either party wish to be heard? That is, do you wish to appear personally before the ASAC panel and make an oral presentation?
Will either party be represented by counsel or other representation?
Please advise me of dates when you are not available for the review between [date] and [date.]
If you will be making a personal appearance, the Committee contemplates that each side will be given up to 30 minutes, not including time answering Committee questions, to present oral argument. If you will be making an oral presentation, bear in mind that the ASAC members will have read all documentation in advance. Therefore, it will not be necessary to repeat facts set forth in the documents, except to the extent that it will help the Committee understand the connection between your arguments and the facts in the record.
I will advise you of the date, time, and location of the review after receiving your responses to this letter.
Please provide the information I am requesting no later than [date.] When you write to me about this matter, send a copy to the other side. If you have questions about preparations for the review, contact me in writing immediately.