Kansas Board of Regents extends deadline for university action on employee dismissal policy

TOPEKA — The Kansas Board of Regents modified a controversial workforce-management policy to give public university officials additional time to submit a framework for justifying dismissal of employees, including tenured faculty, without adhering to standard campus procedures.

The original policy creating an alternative pathway to terminating employees was adopted by the Board of Regents in January 2021 in response to the COVID-19 pandemic, flat-to-lower enrollment trends, pressure to hold down tuition and fees, and historically marginal state funding. Under the two-year policy, a university wouldn’t be required to declare a financial emergency or adhere to certain personnel rules when downsizing its workforce.

Despite a large increase in state appropriations to Kansas higher education in 2022, the Board of Regents voted in May to move the deadline for universities to gain board approval of a framework for implementing the policy to Dec. 31. The board originally adopted a July 1, 2021, deadline for advancing those framework proposals, but none of the six universities in the system presented an action plan.

The policy was revised so campus administrators could propose operational frameworks and make use of the extraordinary process until the end of 2022. Individual appeals of personnel actions wouldn’t need to be completed by Dec. 31.

“The board wants to give presidents and the chancellor every tool they need to make sure they have a healthy budget,” said Blake Flanders, president and chief executive officer of the nine-member Board of Regents.

He said officials at Emporia State University were examining the possibility of implementing the policy to address operational challenges. On Wednesday, the Board of Regents appointed Ken Hush president of ESU.

“They’re going to look at every option,” Flanders said.

A memorandum circulated among ESU faculty indicated the university’s leaders were “considering this policy, among other options, to further the restructuring process.” Officials at ESU didn’t respond to a request for comment.

University of Kansas faculty protested development of the policy in February 2021 because they opposed lowering the bar for removal of tenured professors. Initially, KU officials said they couldn’t rule out reliance on the policy.

KU chancellor Doug Girod subsequently said in June 2021 and again last month that he wasn’t contemplating deployment of the policy to thin the university’s payroll.

“KU has not used the policy, and we will not use it before it expires,” Girod said in a message to university employees. “KU’s ability to manage the financial challenges of the pandemic without using the regents policy is due to the great work so many of you have done during the past two years.”

He said changes to university business practices, development of a transparent budget process that incentivized teaching and research, and stable student enrollment made it unnecessary to turn to the policy on workforce management set to expire at the end of 2022. It could be extended by the Board of Regents.

“KU still faces financial challenges, and we must continue making difficult decisions to ensure we are positioned for the future. The good news is we now have a clearer picture of these challenges — and opportunities — than we did two years ago,” Girod said.

Flanders said he didn’t believe Wichita State University or Kansas State University would rely on the Board of Regents’ employee policy. If enacted at Pittsburg State University or Fort Hays State University, he said, existing collective bargaining agreements would come into play.

In April 2021, the Board of Regents adjusted the policy to increase faculty, staff and student involvement in developing a university’s framework for applying the workforce policy.

Julene Miller, general counsel to the Board of Regents, said elected representatives from faculty, staff and student governance groups were guaranteed a “timely opportunity to provide input, comments and recommendations on the draft framework.”

The board also mandated university leaders communicate with employees a rationale for why it was necessary to adopt the policy rather than rely on standard suspension, dismissal or termination policies, she said.

Under the policy created by the Board of Regents, officials of a university could base employment decisions on performance evaluations, teaching and research productivity, student enrollment, operational costs or reductions in revenue for specific departments or schools.

A university employee must be provided a 30-day written notice of suspension or dismissal as well as written reasons for the personnel action. Appeals filed with the Board of Regents within 30 days would be handled by the Office of Administrative Hearings. The only grounds for reversing a university’s decision would be evidence the action was inconsistent with the university’s framework, based on unlawful bias or discrimination, or otherwise unreasonable, arbitrary or capricious.

The policy placed the burden of proof in appeals on the employee, who has no right in these proceedings to evidence discovery. Appeals under the policy don’t halt a suspension or termination. Employees who prevail on appeal under the policy would be entitled to reinstatement, back pay and restoration of benefits.