Has UW-Milwaukee’s Administration Circumvented Wisconsin State Law?

ABSTRACT. Wisconsin Statutes and UW-Milwaukee Policies and Procedures prescribe detailed, specific conditions and steps to be taken for a UW campus to contemplate financial emergency, including vesting the faculty of any such campus with the authority to review the institution’s financial situation and to make a recommendation to the Chancellor about whether to seek a declaration of financial emergency from the Board of Regents. UWM Chancellor Mark Mone, Provost Johannes Britz, and Vice Chancellor Robin Van Harpen have sponsored an extra-governmental Campus Organization & Efficiency Team (CCOET) to avoid declaring financial emergency. Because CCOET circumvents both Wisconsin Statutes and UWM Policies and Procedures by removing faculty from the process of considering financial emergency, Chancellor Mone should immediately disband his Campus Organization & Effectiveness Team. If he fails to do so, then it is incumbent upon the faculty of UWM to consider seriously the declaration of a lack of confidence in Chancellor Mone and his administration.

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On Wednesday, November 11, I attended (for the first time) a meeting of UWM Chancellor Mark Mone’s “Campus Organization & Effectiveness Team” (CCOET). What this meeting made crystal clear to me is that this ad hoc committee (or “team”) is arguably illegal, and perhaps explicitly and consciously designed to make an end run around campus governance bodies and State of Wisconsin administrative law. At the very least, we must ask the question: Does CCOET represent the efforts of Chancellor Mone’s administration to circumvent the lawful procedures written into state law for the “contemplation” of a “financial emergency,” as prescribed in Chapter 5 of the Wisconsin Administrative Code for the University of Wisconsin System?

Let me explain.

The meeting began with a motion to centralize all replacement hiring for the next two years in the Chancellor’s (or more accurately, Provost’s) office. After being amended both to include positions made vacant through “termination” and, in response to AAUP objections raised by Rachel Buff, to involve faculty governance in the approval of any new hires under this centralization, the motion was unanimously passed. Next, a motion recommended by Provost Britz to freeze “carry-forwards” for use by central administration was tabled for further clarification. The remainder of the meeting was largely spent in a discussion led by Math Department Chair and CCOET “Support Team” Co-Chair Kyle Swanson, on two budget models he had developed to arrive at more than $20 million in continuing budget cuts needed to remediate UWM’s $30 million “structural deficit.” Because more than 85% of UWM’s budget is in personnel, and because the non-personnel components of the budget have been cut to the bone and beyond over three biennia of cuts from the state of Wisconsin, the models discussed at the November 11 meeting focused on how much money each academic and non-academic unit would need to cut from its payroll to erase UWM’s structural deficit. The consequences of such cuts, as explicitly and implicitly discussed in yesterday’s meeting, would constitute a financial emergency in all but name.

Procedures for the “contemplation” of financial emergency are laid out in the regulations for the University of Wisconsin System, as published in Wisconsin Statute 35.93, “Wisconsin administrative code and register.” Chapter 5 of the UW System regulations, “Layoff and Termination for Reasons of Financial Emergency,” both defines “financial emergency” and lays out the procedures for “contemplating” a declaration of financial emergency and then for recommending it to the UW System President and Board of Regents. First the definition:

For the purposes of this chapter, “financial emergency” is a state which may be declared by the board to exist for an institution if and only if the board finds that the following conditions exist:

(a) The total general program operations (GPR/fee) budget of the institution, excluding adjustments for salary/wage increases and for inflationary impact on nonsalary budgets, has been reduced;

(b) Institutional operation within this reduced budget requires a reduction in the number of faculty positions such that tenured faculty must be laid off, or probationary faculty must be laid off prior to the end of their respective appointments. Such a reduction in faculty positions shall be deemed required only if in the board’s judgment it will have an effect substantially less detrimental to the institution’s ability to fulfill its mission than would other forms of budgetary curtailment available to the institution; and

(c) The procedures described in ss. UWS 5.05 and 5.06 have been followed. [UWS 5.02]

Note that, based upon the discussion at the November 11 CCOET meeting, the two substantive conditions for financial emergency to be declared are clearly in place at UWM: the total budget of the institution has been dramatically reduced to the point where the only way to operate “within this reduced budget” would require “a reduction in the number of faculty [and other] positions such that tenured faculty must be laid off, or probationary faculty must be laid off prior to the end of their respective appointments.”

Because these regulations are designed to lay out the conditions that would allow the Board of Regents to declare a financial emergency at any UW campus, they also provide the procedures that any campus must follow in seeking such a declaration, which are described in ss. UWS 5.05 and 5.06. UWS 5.05 specifies that the very “contemplation” of financial emergency requires “the chancellor of the affected institution [to] consult with and seek advice from the faculty committee provided for in s. UWS 5.04.” UWS 5.04 stipulates:

It is the right and responsibility of this [faculty consultative] committee to represent the faculty before the board if a declaration of a state of financial emergency for the institution is being considered, and to assure that the procedures of ss. UWS 5.05 and 5.06 are followed.

And UWS 5.05 explicitly states:

It shall be the primary responsibility of the faculty of the institution to establish criteria to be used by the chancellor and committee for academic program evaluations and priorities. A decision to curtail or discontinue an academic program for reasons of financial emergency shall be made in accordance with the best interests of students and the overall ability of the institution to fulfill its mission.

So, given that CCOET has been discussing the need to terminate faculty and other positions, or to “curtail or discontinue” colleges, schools, and programs to meet the challenges posed by UWM’s reduced budget, it is difficult not to see its formation as the “contemplation” of financial emergency as defined above, and thus to see the Chancellor as failing to follow statutorily prescribed regulations.

This conclusion is further reinforced if we review the administration’s rationale for creating CCOET. In an email sent on September 11, 2015, to the “students, faculty, and staff,” Chancellor Mone announced the formation of his new team and the rationale for its existence:

UWM is facing severe fiscal constraints due to unprecedented circumstances, including four consecutive biennial budget cuts and several factors that created a $30 million structural deficit over the last decade. Consequently, there is an urgent need to devise strategies that will enable us to swiftly and effectively respond. Based on feedback from many sources, including students, governance groups, deans, alumni, and the Budget Planning Task Force, CCOET is being formed to conduct a comprehensive review of our campus. CCOET will develop recommendations for large-scale actions that will address our substantial fiscal challenges and strategic goals.

As this message also sets out, CCOET has been sponsored by Chancellor Mone, Provost Britz, and Vice Chancellor Van Harpen, in order to address the first of the conditions required for the Board of Regents to declare a financial emergency: the “severe financial constraints” brought about by “four consecutive biennial budget cuts.” The language of this message, and of the committee’s purpose and charge is careful not to mention explicitly the termination of tenured or probationary faculty positions. Nonetheless such termination is clearly an implicit consequence of its charge to “Develop recommendations for consolidating organizational units, potentially including combining schools and colleges; deleting functions; shrinking the size of departments, offices, and activities.” Given that these are the two substantive conditions necessary for the Board of Regents to declare financial emergency, it is impossible not to see CCOET as being charged with contemplating actions that are possible only if a financial emergency has been declared. Because the Wisconsin Administrative Code requires the formation of a faculty committee in the event that an institution even contemplates a financial emergency, it would be difficult for a reasonable person not to see CCOET as circumventing state statute.

In accordance with the Wisconsin Administrative Code governing the UW System, UW-Milwaukee has since 1980 had in place well-established policies and procedures for a “faculty consultative committee” to address the contemplation of financial emergencies. Unfortunately, Chancellor Mone has refused to follow UWM policies and procedures to empower the faculty to exercise its rights and responsibilities in a situation involving the contemplation of financial emergency. I will let others speculate upon the Chancellor’s motivations for choosing instead to appoint a hand-picked, administrative-heavy ad hoc “team” to make recommendations on how to deal with the “severe financial constraints” resulting from, among other things, “four consecutive biennial budget cuts.” No matter his motivations, however, clearly one effect of establishing CCOET is to further strengthen managerial/administrative control over the university, particularly the academic side. There will undoubtedly be other effects as well.

To demonstrate further that Chancellor Mone has intentionally, or out of ignorance, circumvented Wisconsin Statutes and UWM Policies and Procedures, I want to turn to an email correspondence which I initiated with him, and which I then shared with Distinguished Professor of History Margo Anderson. The sequence of emails began with my suggestion on November 3 that, in advance of his upcoming November 9 Campus Budget Meeting, Chancellor Mone should release to the UWM community the specific, detailed revenue figures on which he has based his claim that the campus’s anticipated expenditures exceed its revenues by $30 million, constituting what he calls a “structural deficit.” After he replied that such materials would still not be ready ahead of that meeting, I forwarded him a blog post written by Professor Anderson, in which she cites UW-Madison’s AAUP-influenced governance procedures in the event of a consideration of financial emergency, closing with a more detailed request for specific budgetary information:

So, here at UWM, how about we produce those “five years of audited financial statements, current and following-year budgets, and detailed cash-flow estimates for future years as well as detailed program, department, and administrative-unit budgets” and then we can get down to work.

On November 6 I received a response from Chancellor Mone, which I forwarded to Professor Anderson:

I’d point out that Margo’s call for more information is based on the presumption that we have declared financial exigency, which we have not. And, I hope that we do not have to go down that path which is why I’ve asked for CCOET to engage the campus in developing recommendations to help prevent that.

Professor Anderson quickly responded that Chancellor Mone fails to understand the relationship between “declaring” and “contemplating” financial emergency (here called exigency), and therefore (willfully or through ignorance) he has circumvented the policy requirements of UW-Milwaukee and the State of Wisconsin Administrative code. Anderson wrote:

The procedures require that the Faculty Consultative Committee for Financial Emergencies be constituted if “at any time a declaration of financial emergency is to be considered.” Note that obviously means before such an emergency is declared, and in fact implies that the committee would consider whether to recommend such a declaration.

Since reports from CCOET clearly document that individuals have asked the question about whether a fiscal emergency is possible, so that committee is already “considering” the issue. I think we all need to heed the procedures we have long had on these matters.

Despite Professor Anderson’s clear explanation that even the consideration of financial emergency should go through the statutorily established Faculty Consultative Committee for Financial Emergencies, Chancellor Mone continued to misunderstand that the power to “declare” financial emergency is not in his hands, but belongs to the Board of Regents. In response to her email he offered “two thoughts”:

First, CCOET is discussing everything with no specific recommendations to me at this point; the context of this group mentioning financial exigency is to point out that that is a possibility if we do not address our structural imbalance in the next 1.5-2 years. A central goal of CCOET is to go beyond the budget cuts identified for FY16 and FY17 by the BPTF to prevent us from having to declare financial exigency—but that is all a ways off.

Second, while we cannot say definitively what the future will bring, it is my priority to avoid financial exigency at all costs. I don’t think it is out of CCOET’s “jurisdiction” to consider the ramifications, but if they did make such a recommendation in February, all of the required processes that you point out would be followed.

As his “two thoughts” make clear, Chancellor Mone’s reason for sponsoring (along with Provost Britz and Vice Chancellor Van Harpen) a hand-picked, administrative-heavy ad hoc “team” to address UWM’s “severe financial constraints” is that he wants to avoid a declaration of financial exigency (or emergency) “at all costs.” But the point of the State of Wisconsin Administrative Code and UWM’s Policies and Procedures is that the criteria by which to contemplate financial emergency belong not to the Chancellor, or the Provost, or the Vice Chancellor for Finance and Administrative Affairs (or to an appointed “team” sponsored by them), but to the faculty: ”It shall be the primary responsibility of the faculty of the institution to establish criteria to be used by the chancellor and committee for academic program evaluations and priorities.” If one wants, as Chancellor Mone clearly does, “to avoid financial exigency at all costs,” then his reasons not to refer the recommendation to a faculty committee, but to hand-pick a sympathetic committee with only a minority of non-administrative faculty members, become patently obvious.

Whether through deliberate, conscious intent, or through simple ignorance of UWM’s Policies and Procedures and the regulations of the UW System as legislated by the State of Wisconsin Administrative Code, UW-Milwaukee Chancellor Mark Mone (with the cooperation of Provost Johannes Britz and Vice Chancellor Robin Van Harpen) has put in place a procedure that is at the very least extra-legal and which violates his own campus’s established Policies and Procedures.

In light of this circumvention of both Wisconsin law and UWM policies and procedures, Chancellor Mone should immediately disband his Campus Organization & Effectiveness Team. In its stead he needs to authorize the UWM Faculty Consultative Committee for Financial Emergencies, providing them with whatever budgetary data they require to make a recommendation on whether to request the Board of Regents to declare a financial emergency for UW-Milwaukee. If he fails to do so, then it is incumbent upon the faculty of UWM to consider seriously the declaration of a lack of confidence in Chancellor Mone and his administration.

[NB: The initial version of this blog entry had misrepresented the results of the motion to centralize hiring at the November 11 CCOET meeting, leaving out the successful AAUP-sponsored amendment. The current description is to the best of my recollection accurate.]

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About rgrusin

I am an Academic Entrepreneur and Professor of English at University of Wisconsin-Milwaukee.
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6 Responses to Has UW-Milwaukee’s Administration Circumvented Wisconsin State Law?

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