Court action alleges students circulated smoking-ban petitions
By GENE KEMMETER
of The Gazette
University of Wisconsin-Stevens Point (UW-SP) students apparently had the opportunity to earn extra credit points in a UW-SP health course by circulating petitions for a smoking ban in Stevens Point and eating in restaurants that prohibit smoking.
Those allegations are contained in a petition for a writ of mandamus filed by Craig "Archie" and Sue Hansen, owners of Archie's Cocktail Lounge, 2317 Division St., against UW-SP Chancellor Linda Bunnell and professor John Munson. A writ of mandamus is a court order to officials to perform an act required by law when they have neglected or refused to do so.
Judge John Finn has scheduled a hearing in Circuit Court Branch 2 on the petition for 2:30 p.m. Friday, April 15. That hearing is 10 days after the election on the smoking ban ordinance.
The petition for the writ says the Hansens believe Munson "became actively involved in political activity regarding the promotion of the No Smoking Ordinance that was being presented and debated in public forums in the city of Stevens Point.
According to the petition, Munson used university e-mail to solicit students in his classes to circulate petitions to place the ordinance on the ballot as a referendum, promising extra credit for circulating and filing petitions, and also offered extra credit points in the class for eating at specified "smoke-free" restaurants.
The Hansens received e-mails purported to be from Munson, offering 1,500 extra credit/community service points to circulate petitions or 500 extra credit points by eating at a smoke-free restaurant were among documents. Stevens Point attorney Scott Roberts included the e-mails when he filed the petition for the writ, as well as a notice with UW-SP about possible political activity while engaged in the practice of public education.
The group Citizens for BreatheFREE filed petitions with the city of Stevens Point to ban smoking in public places, including restaurants or taverns. The group filed the petitions with about 2,550 signatures on Thursday, Dec. 16, requiring a referendum on the issue if the Common Council failed to approve the ordinance submitted.
The council subsequently failed to approve the ordinance and submitted it to a referendum in the April 5 election.
Roberts filed a request with Munson on Jan. 24, seeking all e-mails or other written records or documents of any time generated in regard to solicitation of students to gain extra academic credit for working on the political issue by distributing petitions, voting, leafleting, attending or speaking out at public meetings regarding the no-smoking ordinance, or otherwise addressing the political issue.
The policies of the University of Wisconsin System Regents and state law prohibit university employees from engaging in political activities during work time and prohibit employees from using state resources to engage in political activities at any time.
Roberts also filed a notice with Bunnell on Jan. 24 regarding Munson and possible political activity while engaged in the practice of public education. Stevens Point City Clerk Barb Kranig also received a notice regarding a potential challenge to the referendum petitions. The letter to Kranig alerted her to the potential issues that may arise as a basis for a challenge to any of the petitions submitted to the city.
In the letter to Bunnell, Roberts requested a meeting to learn her position on the matter and what, if anything, she intended to do. "This is an important issue to my tax-paying client whose very livelihood is affected by the smoking referendum that Professor Munson has apparently seen fit to support and endorse as part of his curriculum."
Among the petitions submitted to the city, 27 were circulated by students who gave their address as living in residence halls and another 15 were circulated by individuals whose names are listed in the student directory with an off-campus address.
Nancy Bayne, associate vice chancellor for personnel and budget at UW-SP, responded to Roberts' request for open records on Feb. 1, saying the only document available regarding extra credit for distributing petitions regarding the no-smoking ordinance was the e-mail Roberts included in his request.
As for documents relating to extra credit for eating at non-smoking establishments, Bayne enclosed a sample letter from Munson about his "Healthy American" course taught to more than 775 students, stating the course is dedicated to encouraging students to make healthy food choices. Dr. Bill Hettler, director of UW-SP Health Services who teaches the course with Munson, was not named in the legal petition. Hettler's wife is a co-chairman of BreatheFREE.
Munson's letter says the restaurant was chosen as a healthy establishment and will be recommended due to the fact it is non-smoking, "provides a quality menu of healthy choices" and "provides an atmosphere that is welcoming, clean and relaxing."
Forms were identified as being attached to the letter to be handed out for each student choosing to eat at the restaurant to earn 500 extra credit points and asking for a "Proof of eating form at the cash register." Students then had to write a one-page short review of why they chose the meal they purchased and why it was a positive health choice.
For participating in the program, Munson wrote that the establishment "will be listed on our course website and recommended as a healthy place for our students to enjoy healthy food."
Munson also wrote that there is no limit on the number of individual meals that students can eat at the restaurant and they should be given one form each time they paid their bill.
As far as the students who received extra credit for distributing petitions, Bayne wrote that UW-SP is prohibited from disclosing the information under the Federal Education Rights and Privacy Act of 1974 (FERPA).
"In addition, once the extra credit points are recorded, the papers are recycled," she wrote, "Therefore, there is no way of determining at this point in time which extra credit assignments were completed by which students."
After receiving Bayne's response, Roberts wrote back, saying "We do not feel that the response is adequate." He also expanded the Open Records request, asking for the same type of information for all other professors in the School of Health Promotion and Human Development as was requested from Munson.
Roberts wrote that FERPA provisions should not apply because "the student who you seek to protect have chosen to participate in a public matter that requires them to ascribe their names to petitions that force an electoral and public referendum."
He wrote that "confidentiality over personally identifiable material is in effect waived when the activity that we seek to learn about, and which they participated in, involves a very public and open procedure which is at the very heart of our system of government."
That letter also sought to find out how many students "actually received extra credit for the political activity they were involved with under the direction of Professor Munson or other Professors in his department." Disclosing the number does not reveal the names of the individuals involved, he wrote.
Robert again asked Bunnell to disclose what action she intended to take in regards to "this obvious misconduct of Professor Munson."
He said that his Feb. 8 letter was not only an extension of the first Open Records Demand but also a formal complaint against Munson for violation of Regent Policies, the Wisconsin Administrative Code and state statutes. "This is a very serious matter not to be ignored," he wrote.
He asked that Bunnell inform him of any formal complaint procedure to prepare and fill out, adding, "We, of course, reserve our right to refer this matter to other appropriate state prosecutorial agencies."
Bayne responded on Feb. 22 that FERPA remained the controlling factor in refusing to disclose information about the students.
As for the exact number of students who received extra credit, Bayne wrote, "there are no records that contain this information. Only points were recorded, not the activity for which the points were awarded."
She wrote that she queried other faculty in the department and "No other faculty indicated they had such records."
Because her letter constitutes a denial of the request for records, "I am required to inform you that the determination is subject to review by mandamus under s. 19.37(1), Wisconsin Statutes, or upon application to the Attorney General or a district attorney," she wrote.
Guy Gottschalk, a member of the Board of Regents from Wisconsin Rapids who stays in touch with UW-SP officials, said he was unaware of the activities but political activities in a classroom are prohibited. "If it leads to a legal proceeding, I could not, or would not, comment," he added.
Roberts said he was concerned with the university's response to the request for the records, as well as the entire situation in the class. "It's very troubling that professors were using their pulpits in the classroom to get students to go out and do their work for them and then reward them with extra credit," he said.
If a student is against that action does he have to compromise his principals in order to receive extra credit, Roberts said.
He was also surprised about the university saying that records were unavailable because they were "recycled" or there was no records to identify who received extra credit in the classes.
"They are abusing their position of public trust," Roberts said. "It's the academic dictatorship to the student proletariat."