Legal Considerations

Contact Information

Alessandra Gillen
Mitchell Hall 247
Office of the Dean of the Graduate School
3203 N Downer Ave.
Milwaukee, WI. 53211

As a state agency, UWM is governed by the Wisconsin Statutes and the Administrative Code. The Wisconsin Open Meetings Law covers meetings of governmental bodies and their sub-units. Programs that are wholly or partly funded by the federal government are subject to specific federal statutes and administrative regulations. Some state and federal laws have due process requirements that call for an avenue of appeal for students on academic matters and specify mandatory steps in appeal procedures. The outline that follows is not an exhaustive listing of Wisconsin and federal laws governing University operations, but rather a summary of the two laws that most directly affect student appeal procedures.

In matters of academic judgment, if the academic organization can document its good-faith compliance with procedural requirements, courts will usually accept the organization’s judgment. Therefore, it cannot be over-emphasized that all individuals and committees involved in graduate student appeals of academic decisions must know and strictly follow all prescribed procedures to ensure that there are no violations of due process or other statutory or administrative law requirements.

Following are summaries of Wisconsin Statutes governing open and closed meetings and public records. The open meetings and public records laws must be followed in all appeals. Wisconsin Statutes are available on the State of Wisconsin Legislative Reference Bureau Website.

Open Meetings: Chapter 19 Wisconsin Statutes, Subchapter IV

Meetings of all Wisconsin state and local government bodies must be open to the public unless a closed meeting is expressly provided by law (Wis. Stat. sec. 19.81(2)). The term “governmental body” in the statute includes any formally constituted subunit of a governmental body (Wis. Stat. sec. 19.82(1)). Appeal committees, therefore, are subject to the following procedural requirements specified in the Open Meetings Law, Ch. 19:

Notice

Public notice of a proposed meeting must be given within a reasonable time before the meeting (Wis. Stat. sec. 19.84(5)).

Note: Meeting Notice forms are may be obtained from University Communications and Media Relations. When completed, the form should be forwarded to University Communications at least six days before the meeting. If it is anticipated that the meeting will be closed, this fact must be stated on the form. Notices also may be filed via e-mail to this area. Call x4452 for the e-mail address and a list of the required elements for the notice.

Closed Sessions

A meeting may be closed if one of the exemptions listed in Wis. Stat. sec. 19.85(1) applies. Other points to note:

  1. A motion must be made for a closed meeting. The motion must include the specific statutory exemption for closing the meeting. A roll call vote must be taken on the motion and be recorded in the minutes.
  2. Wis. Stat. sec. 19.85(1)(f) would be the most likely exemption in a student appeal hearing if the following elements applied:
    • The committee is considering social or personal history (including records and information covered by the Family Educational Rights and Privacy Act) or disciplinary information about a specific student which, if discussed in public, would be likely to have a substantial adverse effect on the reputation of the student or any individual referred to in such data.
    • The maker of the motion has some knowledge of the records or information and a reasonable belief that there is a likelihood of a substantial adverse effect on the reputation of the individual making the appeal if the records or information are discussed in an open session.
  3. The meeting may go into closed session under Wis. Stat. sec. 19.85(1)(a) for deliberations concerning the decision, even if the hearing portion of the meeting is open.

Other Requirements of the Open Meetings Law

  1. A secret ballot may not be used in open or closed sessions (Wis. Stat. sec. 19.88). For votes expressed by voice or a show of hands, only the count, not the individual names, are recorded in the minutes. If a unit uses written ballots, they must be signed and retained as part of the record.
  2. Anyone present at an open meeting may take notes or tape record the meeting provided the meeting is not physically disrupted.
  3. Minutes of the meeting must be prepared and distributed according to procedures established by the committee (see Appendix B for a sample format). Wisconsin law requires that all motions and votes be recorded.
  4. A committee may not go in and out of closed session during the same meeting unless the original public notice states that the committee will (or may) reconvene in open session after the closed session (Wis. Stat. sec. 19.85(2)).

19.85 Exemptions to Open Meetings of Governmental Bodies, Wisconsin Statutes

The text printed here was derived from the State of Wisconsin’s Website on Wisconsin Statutes, which was last visited on July 29, 2020.

  1. Any meeting of a governmental body, upon motion duly made and carried, may be convened in closed session under one or more of the exemptions provided in this section. The motion shall be carried by a majority vote in such manner that the vote of each member is ascertained and recorded in the minutes. No motion to convene in closed session may be adopted unless the chief presiding officer announces to those present at the meeting at which such motion is made, the nature of the business to be considered at such closed session, and the specific exemption or exemptions under this subsection by which such closed session is claimed to be authorized. Such announcement shall become part of the record of the meeting. No business may be taken up at any closed session except that which relates to matters contained in the chief presiding officer’s announcement of the closed session. A closed session may be held for any of the following purposes:
    1. Deliberating concerning a case which was the subject of any judicial or quasi-judicial trial or hearing before that governmental body.
    2. Considering dismissal, demotion, licensing or discipline of any public employee or person licensed by a board or commission or the investigation of charges against such person, or considering the grant or denial of tenure for a university faculty member, and the taking of formal action on any such matter; provided that the faculty member or other public employee or person licensed is given actual notice of any evidentiary hearing which may be held prior to final action being taken and of any meeting at which final action may be taken. The notice shall contain a statement that the person has the right to demand that the evidentiary hearing or meeting be held in open session. This paragraph and par. (f) do not apply to any such evidentiary hearing or meeting where the employee or person licensed requests that an open session be held.
    3. Considering employment, promotion, compensation or performance evaluation data of any public employee over which the governmental body has jurisdiction or exercises responsibility.
    4. Except as provided in s. 304.06 (1) (eg) and by rule promulgated under s. 304.06 (1) (em), considering specific applications of probation, extended supervision or parole, or considering strategy for crime detection or prevention.
    5. Deliberating or negotiating the purchasing of public properties, the investing of public funds, or conducting other specified public business, whenever competitive or bargaining reasons require a closed session. ee. Deliberating by the council on unemployment insurance in a meeting at which all employer members of the council or all employee members of the council are excluded. eg. Deliberating by the council on worker’s compensation in a meeting at which all employer members of the council or all employee members of the council are excluded. em. Deliberating under s. 157.70 if the location of a burial site, as defined in s. 157.70 (1) (b), is a subject of the deliberation and if discussing the location in public would be likely to result in disturbance of the burial site.
  2. Considering financial, medical, social or personal histories or disciplinary data of specific persons, preliminary consideration of specific personnel problems or the investigation of charges against specific persons except where par. (b) applies which, if discussed in public, would be likely to have a substantial adverse effect upon the reputation of any person referred to in such histories or data, or involved in such problems or investigations.
  3. Conferring with legal counsel for the governmental body who is rendering oral or written advice concerning strategy to be adopted by the body with respect to litigation in which it is or is likely to become involved.
  4. Consideration of requests for confidential written advice from the elections commission under s. 5.05 (6a) or the ethics commission under s. 19.46 (2), or from any county or municipal ethics board under s. 19.59 (5).

No governmental body may commence a meeting, subsequently convene in closed session and thereafter reconvene again in open session within 12 hours after completion of the closed session, unless public notice of such subsequent open session was given at the same time and in the same manner as the public notice of the meeting convened prior to the closed session.Nothing in this subchapter shall be construed to authorize a governmental body to consider at a meeting in closed session the final ratification or approval of a collective bargaining agreement under subch. I, IV, or V of ch. 111 which has been negotiated by such body or on its behalf.

Public Records: Chapter 19 Wisconsin Statutes, Subchapter II

It is a policy of the State of Wisconsin that state employees are to provide persons with the greatest possible information regarding the affairs of government (Wis. Stat. sec. 19.31). Except as provided by law, any requester has a right to inspect and receive a copy of any record (Wis. Stat. sec. 19.35).

The same exemptions in the Open Meetings Law that allow a governmental body to meet in closed session may be used to deny access to a public record. At the time a request is made to inspect a public record, the campus records custodian must demonstrate that there is a need to restrict access in order to deny a request (Wis. Stat. sec. 19.35(1)). A document may not be withheld merely because it is a product of a closed session.

If there is any question about whether a particular document should be disclosed, the requesting party should be referred to the records custodian for the campus, who has been delegated by the Chancellor to make decisions on whether to disclose records. If there is any doubt about procedures or the application of the public records law, the Office of Legal Affairs should be contacted before taking any action.

The Family Educational Rights and Privacy Act (FERPA or the “Buckley Amendment”)

This is a federal law that permits students to inspect their own educational records and restricts others from access to those records. This federal law is an exception from the Wisconsin public records law. If a student’s appeal is heard at an open meeting, the student’s request for an open meeting is deemed a waiver of the FERPA confidentiality provisions concerning materials discussed at the meeting and any records made from that meeting (such as minutes). These circumstances must be made clear to the student, preferably in writing.