Ken Hush

Emporia State University president Ken Hush, right, received approval from the Kansas Board of Regents to deploy a policy designed to expedite personnel and program reform. (Tim Carpenter/Kansas Reflector)

In September, 33 faculty of Emporia State were dismissed, many of whom were tenured. Now, two of them have asked the Kansas Supreme Court to step in because of what they believe are unfair appeal hearings. 

Attorneys for ESU professors Christopher Lovett and Amanda Miracle petitioned Feb. 23 to the Kansas Supreme Court asking for relief based on the alleged denial of certain rights they believed they are subject to under law. Lovett and Miracle are both members of the Department of Social Sciences, Sociology and Criminology.

This all started five months ago when ESU President Ken Hush asked the Kansas Board of Regents (KBOR) to pass a workforce management framework for ESU and has been a moving process ever since. With all of the moving academic, legal and personnel factors involved, this can be a confusing timeline to follow. Here is what readers need to know: 

What is the “workforce management framework?” 

 

On Sept. 14, 2022, Hush and then interim provost Brent Thomas went before KBOR to ask for the approval of the “Framework for Workforce Management.” KBOR unanimously voted to allow the board’s framework to be applied to ESU. 

KBOR is a nine-member board that governs all public higher education institutions in Kansas, according to its official website. This includes everything from enrollment records to the actual governing of the institutions. 

This framework is a three-page document that allowed for the university to “suspend, dismiss, or terminate” employees based on “low enrollment, performance evaluations, realignment of resources” and seven other factors, including the financial state of the university and the conduct of the employees in question.

The employees at risk of termination included those who held a tenured position, a status that meant the professor proved their academic knowledge and standing in their respective fields. Tenured professors were also legally protected from being fired without a lengthy procedure established by the university before the framework took effect. 

The rationale for this framework cites a KBOR policy that, in essence, states that in the occurrence of “extreme financial pressures” experienced by a state university due to certain circumstances – including the COVID-19 pandemic and university enrollment – any employee may be dismissed. 

The framework also lays out the process of what will happen once it is approved and put into action. The appeals process, as outlined in the framework, is the subject of the petition before the state’s high court. 

Who are the “Hornet 33” and what has happened since Sept. 15?

 

The first step in the framework procedure was to notify the employees who would lose their jobs. On Sept. 15, 33 professors were called to the Earl Center, a building many of them didn’t even know the location of, and in a matter of about 10 minutes, were informed that they would have to leave the university in May. 

Following the notices, the affected employees had 30 days to appeal (request the reversal of) their dismissal. By the deadline, 19 of the professors had filed for an appeal. Hush then had until Nov. 14 to respond.  

Once the response was received, KBOR had 10 days to send it to the Office of Administrative Hearings (OAH).

Next, the hearings through the OAH were scheduled, a process still continuing for the 19, before a final decision is made. If the employee loses their appeal, the dismissal is final. If they win, they will be able to keep the position they were dismissed from and gain back any benefits or pay lost. 

 

What is the Office of Administrative Hearings (OAH)?

OAH is an office in Topeka that “employs administrative judges” in order to “conduct proceedings for many Kansas state agencies,” according to their official website. Right now, hearings for the appeals filed by the 19 dismissed professors are underway through the office. 

“It's a special court that's part of the executive branch of government that's part of a Kansas state agency which has judges that hear these cases that are assigned to them,” explained Michael Smith, professor and chair of Social Sciences, Sociology and Criminology. “So there's no jury involved.”

A hearing is when one of the five judges for the OAH hears witnesses, exhibits, and “rules of evidence,” similar to a court case, according to the OAH website

However, according to the framework passed by KBOR, “no discovery will be permitted.” This means that the employees undergoing the hearing process are not able to gather evidence as to why they were dismissed despite being tenured or tenure track, according to Smith. 

“Imagine if we were having a debate (and) you were not allowed to know what the affirmative's case is but you were still supposed to rebut it,” Smith said. “Now, that's the argument that the people being dismissed, who have filed this lawsuit against the administrative procedures are arguing, that they don't know what they're rebutting because of the lack of discovery.”

Additionally, those filing for appeal are not allowed to call witnesses for the hearing. 

According to the Lovett and Miracle petition, Lovett requested to be allowed discovery and witnesses and was denied by ESU. On Feb. 1, Lovett’s lawyer emailed the hearings officer a request for ruling on the motion for discovery. No response was received from OAH and it was ultimately relayed via phone call that the hearing officer “directed that there would be no discussion of the motion until the actual hearing date.”

What was the petition filed to the Kansas Supreme Court? 

 

On Feb. 23, Lovett and Miracle filed a Kansas Supreme court case against OAH, KBOR and ESU. The counsel – lawyers – for the professors are J. Phillip Gragson and Amanda S. Vogelsberg through a law office in Topeka. 

The petition requests the immediate halt of Lovett and Miracle’s OAH hearings; allowing professors’ discovery and the calling of witnesses; for OAH, KBOR and ESU to recognize the constitutional rights under the fifth and 14th Amendments, which are rights to “life, liberty or property;” and the awarding of damages, including legal fees. 

The right to property is of interest in this case, as tenure rights fall under this label as established by Tonkovich v. Kansas Board of Regents, a federal court ruling dealing with Constitutional issues from 1998. Tonkovich ruled that tenured employees are “entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.”

The petition also discussed Miracle’s Feb. 10 hearing (Lovett’s hadn’t occurred at the time of the filing). Miracle was not allowed discovery or witnesses despite requesting both. At the conclusion of the hearing, it was made clear by the administrative judge that there would be no ruling on any of the appeals until all the hearings were completed. 

The professors also objected to the administrative judges intending to meet together and decide the merits of the cases collectively. This, they allege, would violate the professors’ right to a fair hearing. 

On Feb. 27, the Kansas Supreme Court denied the request for the hearings to be halted. However, the order also required OAH, KBOR and ESU to file their responses to the petition by March 13. Lovett and Miracle may also file a reply before March 20. The Kansas Supreme Court may hear this case after the response deadlines.

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