EMPORIA — A state appeals officer has reinstated two Emporia State University professors who were fired last year as part of a realignment process, citing the university’s refusal to explain why their jobs were eliminated.
The decision to reinstate history professor Amanda Miracle and associate math and economics professor Rob Catlett provides hope for other professors who appealed their dismissal and are still waiting to learn their fate.
Questions continue to swirl on campus around the firing of 33 faculty members, including tenured professors, in a cost-saving move in mid-September — and mysterious “performance bonuses” the administration handed out six weeks later.
On Tuesday, the faculty senate unanimously voted to quash a draft letter responding to Kansas Reflector’s news coverage of the bonuses. Debate about the letter confirmed the 68 faculty members who received a bonus were not told why they were receiving the money and highlighted the fallacy of rewarding unknown behavior.
The university has declined to respond to inquiries about the bonuses, which Kansas Reflector revealed through an open records request, or directly answer questions about the university’s realignment process.
The administration’s secrecy played a pivotal role in the appeals officer’s decision to reinstate Miracle and Catlett.
ESU’s “framework” for realignment, a plan approved by the Kansas Board of Regents under a temporary pandemic-era policy, created a limited appeals process in which professors were denied typical due process. Professors weren’t allowed to gather evidence about why they were fired or call witnesses to testify at a hearing conducted by the Office of Administrative Hearings, a state agency. But the “framework” also specified that professors would be given an explanation for why their employment was terminated.
Instead, the university presented fired professors with a bullet point list of possible reasons for termination that had been copied from the “framework” document. The list includes low enrollment, cost of operations, restructuring of programs, market considerations, performance evaluations and productivity.
In her appeal, Miracle said the university’s refusal to provide a specific reason for her firing meant “the ability to offer a meaningful defense is at best a farce. At worst, it is impossible.”
Jennifer Barton, the presiding officer and administrative law judge who handled appeals for Miracle and Catlett, wrote in her rulings that the open-ended language makes it impossible to determine which factors were the actual reason for the professors’ dismissal. The language even implies that none of the listed items apply and perhaps other undisclosed reasons exist.
“The most important consequence of ESU’s omission is that it undermines the already limited appeal rights reserved for the employee, almost to the point of nonexistence,” Barton wrote.
ESU attorneys argued that the university took the deliberate and intentional action to fire Miracle and Catlett after thorough consideration.
“If this is true, it should not have been burdensome for ESU to properly comply with the mandate and state the reason,” Barton wrote.
The university has 30 days to seek judicial review of the decision.
“Emporia State appreciates the Office of Administrative Hearings and their time, effort and energy,” the university said in a statement. “While ESU has received these initial decisions, there are several decisions that have yet to be issued. The university will continue to move forward with our plans to restructure and invest in the successful elevation of our academic programs.”
The ESU Bulletin, the student newspaper, obtained a copy of the April 13 ruling on Miracle and April 19 ruling on Catlett through an open records request.
A morale boost
History professor Chris Lovett, who previously joined Miracle in a failed attempt to persuade the Kansas Supreme Court to intervene in the appeals process, said the appeals officer “nailed it” by pointing to the lack of explanation for why faculty members were fired.
The 13 professors who filed an appeal, including himself, all made the same argument, Lovett said.
“I’m very glad for her and I’m hoping for everyone else that was terminated,” Lovett said. “Her decision boosted the morale of everyone involved, the other 12 that appealed their case, and now we’re just waiting to see, you know, what’s going to happen.”
English professor Rachelle Smith, who also filed an appeal after her job was eliminated, said she was optimistic other officers would reach the same conclusion for professors still waiting on a ruling.
“I never thought that how the university went about doing this was fair or equitable,” Smith said. “There are many issues surrounding our firing that I think were ill advised. So, yeah, I am hopeful.”
Smith said her appeal session lasted an hour and 45 minutes, but she estimated that she spent no more than 20 minutes talking during her appeal. Mostly, she said, the officer asked questions of the ESU attorneys.
The university’s position was that tenure was a privilege, Smith said. She told the judge about the six-year process she went through before earning tenure. Faculty members have to prove their accomplishments to their colleagues, administrators, university president and Board of Regents before tenure is granted.
“It’s by no means a foregone conclusion,” Smith said.
After working at the university for 28 years, Smith said, being fired without explanation “felt like I got thrown out like a pair of old shoes.”
“It was demoralizing,” Smith said.
Hush money
Faculty senate president Shawn Keough, an associate professor of business administration, circulated a draft letter in advance of Tuesday’s meeting to respond to Kansas Reflector’s reporting on “silent bonuses.”
The draft letter, obtained by the Reflector, said faculty members who received a reward “have no information concerning how they were selected.”
“This is counter to best practices for rewarding behavior,” the draft letter said. “If you want to encourage your employees to achieve excellence, they must know which behaviors will elicit an award.”
The letter also said “the system by which these bonuses were distributed remains opaque and has led to suspicion.”
ESU president Ken Hush awarded $137,741 to 68 faculty members for the Oct. 30 pay period. The university won’t talk about the criteria that was used to determine who gets a bonus or how much each individual received.
The faculty senate’s draft letter, as well as a letter by Hush that was distributed to administration-approved media outlets, faulted Emporia Mayor Susan Brinkman for her comments about the bonuses in an April 5 story by Kansas Reflector.
“It’s really unprecedented in higher education,” Brinkman said. “I think it’s a pretty common play out of the Business 101 playbook. When you’re making some radical changes within a business or organization, there are going to be staff that you identify that you want to keep, that you want to keep quiet, or that you want to be on your team shouting from the rooftops. And so they are awarded monetarily to do so.”
In his letter, Hush defended the concept of recognizing high performance with bonuses and said the mayor’s comments “cannot be tolerated.” The faculty senate’s draft letter said professors don’t deserve insinuations that they received “Hush money.” The draft letter also asserts that at least three other universities, all in other states, have awarded similar bonuses.
Faculty senate members, including communications director Gwen Larson, voted not to authorize the letter after multiple professors objected to the idea.
Mallory Koci, director of ethnic and gender studies, said it wasn’t fair to single out the mayor for criticism. Koci pointed out the story also includes quotes from English professor Mel Storm. She agreed with colleagues who interpreted the mayor’s remarks as complaints about Hush.
“I don’t feel, when I read Susan Brinkman’s comments, that my integrity was impugned as a faculty member,” Koci said. “I too read it as her critiquing the administration and not faculty.”
Alexis Powell, an associate professor of biological sciences, said the mayor’s comments appeared playful. They received traction, he said, “because there is a vacuum of information” about the bonuses.
“Pretty much everybody has wondered, ‘Why did I get one? Why didn’t my colleagues get one?’ Being told that it’s for high performance didn’t provide any clarity whatsoever,” Powell said. “We didn’t all look around and say, ‘Oh, yeah, of course that’s why they got it.’ ”
Powell said it appeared that Hush has a “master master plan” that faculty members don’t know about.
There are a number of things that have happened at ESU that have warranted concern, Powell said.
“This is the first and only thing that the faculty senate is bringing forward in an open letter? That’s surprising,” Powell said.
Scott Wichael, an associate professor of music who received a $1,702 bonus, said the problem with the letter is that it “fans the flames.”
“There’s no solving anything with this,” Wichael said.
‘Why did this happen?’
Journalism professor Max McCoy, who serves as adviser for The ESU Bulletin and has written opinion columns for Kansas Reflector, appeared before the faculty senate to challenge those who received a bonus to donate the money to charity.
McCoy, who was among the fired professors, also offered unsolicited advice: “Don’t take money when there is no explanation for why you are getting it.”
Juan Chavarria, an assistant professor of accounting, information systems and finance, said he received no explanation for the $2,854 bonus he received last fall.
Chavarria said he thought it was a reward for teaching an extra course that semester, and he was surprised to learn in a meeting with the provost in January or February that performance bonuses had been awarded. He said he “very clearly” argued for an explanation about the process that was used.
“Regardless of what we say, I think that the idea that it was some sort of a collusion or quid pro quo is in the air,” Chavarria said.
But, he pointed out, he appeared in a Sept. 22 Reflector story where he was one of the few faculty members who spoke critically about the firing of others. It doesn’t make sense to suggest he was rewarded for silence, he said.
Chavarria said he would let his conscience determine what he does with the money.
“Whether I decide to return the bonus or to donate to a foundation? I’ll think about it,” he said.
Keough, the faculty senate president, received the largest bonus, for $3,887.
At the end of the meeting, he said he was bothered by the complaints that have been made about him over the past year. The accusations included being obstructive and not prioritizing faculty interests. His integrity had been called into question during the meeting, he noted.
So, Keough said, he was calling for a vote of no confidence in himself and would offer no defense. Lovett, the fired history professor, made the motion, which died for lack of a second motion.
In an interview after the meeting, Keough said he planned to pursue internal conversations with administration about the bonuses.
“All of the questions that people are asking are exactly the questions that I’ve been asking,” Keough said. “Why did this happen? And why don’t faculty have input on this?”
He said no one who received a bonus was aware they were getting a bonus.
“I had no idea,” Keough said. “I was like most of these other people who saw it and went, ‘Wow, what is this?’ ”
Keough, who teaches compensation, said bonuses work — to a certain extent. He described bonuses as a tool that higher education has “completely ignored.”
“The administration has realized that the process was not very good, and that they want to try to make adjustments in the future, and that the faculty are very willing and able to work through some of these issues and come up with something that’s amenable to everybody,” Keough said.
