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PAc-26 Elimination of Tenured Faculty Appointments, and Tenure- Track Faculty Appointments Within a Contract Period, Due to Low Academic Program Productivity, Significant Financial Emergency, or Financial Exigency.

Policy:  PAc-26
Subject: Elimination of Tenured Faculty Appointments, and Tenure- Track Faculty Appointments Within a Contract Period, Due to Low Academic Program Productivity, Significant Financial Emergency, or Financial Exigency.
Approval Date: 06/08/2017
Revision Date: 08/08/19
Last Review Date: 08/08/19
 
 
PURPOSE:
To establish the procedures for the elimination of tenured faculty members, or tenure-track faculty members if elimination is to occur during their contract period, due to low academic program productivity, a significant financial emergency, or financial exigency.
Henceforth, "TTTC faculty members" will refer to tenured faculty members or to tenure-track faculty members who are to be eliminated during their contract period.
 
 
GENERAL POLICY:
The Board of Regents has a statutory duty to the people of Kentucky to maintain quality academic programs consistent with the University's mission statement, strategic plan, oversight by the Council on Postsecondary Education, and as governed by the General Assembly.
Accordingly, determination of the need to eliminate TTTC faculty

members due to low academic program productivity, a significant financial emergency, or financial exigency is a prerogative reserved for the Board of Regents and will not be delegated. The Board of Regents will make elimination decisions upon the recommendation of the President that the need exists to eliminate TTTC faculty members due to low academic program productivity, a significant financial emergency, or financial exigency. The Board of Regents is fully aware that the elimination of TTTC faculty members is a matter of gravity and that such actions are to be taken subject to thorough review and with the requisite safeguards of due
process in order to maintain quality academic programs consistent with the University's mission statement, strategic plan, and financial resources.
As used in this policy, an "Academic Program" is (a) a program that offers a distinct degree or (b) a track within a degree that is described as a distinct option in the University catalog.
 
 
REASON 1: LOW ACADEMIC PROGRAM PRODUCTIVITY
Academic programs experiencing declining productivity are defined as those with ongoing, sustained challenges related to achievement of key performance metrics as defined by the state performance funding model. Other data to be evaluated include a program's "student-credit-hour per full-time-equivalent (SCH/FTE)" ratio, the general education classes and other programs supported by the affected faculty, and the cost/benefit of the program relative to other programs at the university. Using trend data in these key metrics from annual academic program reviews, the Provost and Vice President for Academic Affairs may initiate a program evaluation process leading to a recommendation regarding the future of the program. Through this process, the Dean, in consultation with the faculty members in the affected program as well as the Department Chair/Associate Dean, will be given the opportunity to write an evaluation report with written justification for continued program support. With agreement from the Provost and Vice President for Academic Affairs, the faculty of the affected program will develop a program productivity improvement plan as described in the Continued Program Support section below. Otherwise, the process for Reduced Scope of Program or Discontinuance of Program process will be initiated.

Continued Program Support Should the evaluation report result in a recommendation to continue offering the program, the program faculty will develop a plan to improve its productivity with respect to the key metrics. This plan must include specific strategies and a timeline of at least two years showing progressive improvements in the key metrics. The faculty may seek assistance from the Office of Research and Sponsored Programs, Student Success, Institutional Research, and other personnel who can contribute to the sustainability plan for the program. The Department Chair/Associate Dean, Dean, and Provost and Vice President for Academic Affairs must approve this plan or recommend the program be reduced in scope or discontinued. The plan should be implemented with fidelity by all parties.

After two years of the implementation phase, the program will be re- evaluated. At this time, based on a determination by the Provost and Vice President for Academic Affairs, in consultation with the Dean, the implementation phase may be continued or the program may be moved to the Reduced Scope of Program or Discontinuance of Program process.

Reduced Scope of Program 
Should the evaluation report result in a recommendation to reduce the program scope, the Associate Dean/Department Chair will develop a plan to realign the program instructional resources with the reduced scope. This plan must include input from the faculty in the affected program and must be approved by the Dean and the Provost and Vice President for Academic Affairs. If such a realignment leads to the elimination of TTTC faculty members the plan will follow the process identified in the Plan Development section.

Discontinuance of Program
Should the evaluation report result in a recommendation to discontinue the program, decisions relative to the elimination of TTTC faculty members will follow the process identified in the Plan Development section.
 
 
REASON 2: SIGNIFICANT FINANCIAL EMERGENCY
A significant financial emergency is defined as a documented substantial decline in the financial resources of the institution that is brought about by an unanticipated and significant reduction in state funding or institutional enrollment, acts of terrorism or significant public crisis that

compel a sudden and imminent reduction in the available operating budget. In a significant financial emergency, material reductions must be required across divisions to balance the institution’s operating budget while sustaining quality or criteria for accreditation.

A significant financial emergency may also exist within a restricted program upon notice of a reduction or elimination of program funds. In such a situation, the administration shall determine what reductions could be made within that program’s budget to attempt to avoid layoffs.

In the event of a significant financial emergency, the President shall look at all options within the University to redress the emergency, including the use of furloughs, staff reductions in force and the elimination of faculty appointments. In identifying faculty appointments the President may look to any currently existing program review process in place to identify faculty appointments that may be eliminated to help address the significant financial emergency.

In evaluating options to respond to the imminent financial needs of the institution resulting from a significant financial emergency, the President shall consult with Academic Affairs and the Chief Financial Officer or his/her designee, as well as representatives from constituencies from across the campus, including specifically the Faculty Senate.

If the response to the significant financial emergency will involve elimination of TTTC faculty, then the President will direct the Provost and Vice President for Academic Affairs to engage in Plan Development as detailed below. If the emergency is time-sensitive, the plan deadlines below may be adjusted to shorten the overall process, as long as all participants in the process are informed about the new timeline.
 
 
REASON 3: FINANCIAL EXIGENCY
The determination of the existence of financial exigency is a prerogative reserved for the Board and will not be delegated. Determination that financial exigency exists shall be made by the Board upon the presentation by the President and Chief Financial Officer of an analysis of institutional needs, requirements and available resources.

Financial Exigency
“Financial Exigency” is a severe financial crisis that fundamentally compromises the integrity of the institution as a whole. This crisis may occur due to reductions in state funding, loss of revenue from endowments or investments, decline in institutional enrollment, acts of terrorism or significant public crisis, other action, events or combinations thereof. The crisis has caused the University to consider and, if appropriate, pursue the elimination of non-tenured positions, staff positions, potential furloughs of faculty and staff, pay cuts for faculty and staff, cuts to noneducational programs and services, and a reduction in operating expenditures across the institution, among other potential reductions to such a point that further reductions in all of these

categories would seriously jeopardize the quality of the University's programs and the ability of the University to fulfill its obligations to the public. Projections of enrollment, state funding and of other sources of revenue must indicate that the shortage of funds will be both severe and persistent.
 
 
PLAN DEVELOPMENT
When there is a possibility that TTTC faculty members might be eliminated for any of the three reasons detailed above, the Provost and Vice President for Academic Affairs will convene a Program Change Committee (PCC) comprised of the Provost and Vice President for Academic Affairs (who will Chair the PCC), the Dean of each college, and one tenured faculty member from each college. Faculty members will be selected by the tenured and tenure-track faculty members of the respective college. A faculty member serving on the PCC will neither be a faculty senator nor the Faculty Regent. The PCC will produce a written Proposal regarding low academic program productivity, the significant financial emergency, or financial exigency. However, the Provost will have ultimate authority over the content of the Proposal.

If the Proposal recommends elimination of TTTC faculty members, the Provost and Vice President for Academic Affairs will submit the Proposal to the President, the Chair of the Faculty Senate, and the Faculty Regent. The Proposal will include, but not be limited to, the rationale for the elimination of TTTC faculty members, the perceived effect that such an action and any resulting reorganization or elimination of Academic Programs will have on the University as a whole, and the number of TTTC faculty members that will be recommended for elimination. The proposed timeline for closing or phasing out an Academic Program and displacing of TTTC faculty members will be based on consideration of the time required for anticipated completion by students currently enrolled in the program or for facilitation of their placement in acceptable alternative programs. At the conclusion of this process, the faculty line for each eliminated appointment will terminate.

The Provost and Vice President for Academic Affairs will also submit copies of the Proposal to the Dean of the College and the Chair or Associate Dean of the department in which the affected Academic Program(s) is located. The copy of the Proposal shall be accompanied by a notice stating that a Response to the Proposal, if any, from the Faculty Senate and from faculty in the affected Academic Program(s) be made, in writing, to the Provost by a designated date not less than sixty (60) calendar days from the date the Proposal is submitted to the Faculty Senate Chair and the Chair or Associate Dean of the department in which the affected Academic Program(s) is located. If, however, the notice is given thirty (30) calendar days or less prior to the close of the spring semester (graduation day), then the Faculty Senate and the faculty in the affected Academic Program(s) shall have no less than ninety (90) days calendar days to respond to the proposal.

The Faculty Senate as a body of the whole, or through its appointment of an ad hoc committee or committees, may study and review the Proposal. The Faculty Senate may provide a written Response to the Proposal no later than the designated date to the Provost and Vice President for Academic Affairs either (1) concurring with the Proposal or, (2) setting forth arguments and statements of fact in opposition to the Proposal and which may contain alternative proposals.

Within 30 calendar days of receipt of the Faculty Senate’s Response and the Reponses from faculty in the affected Academic Program(s), the PCC will review the Responses and will prepare a written Plan for the elimination of TTTC faculty members due to low academic program productivity, a significant financial emergency, or financial exigency (“Provost’s Plan”). The Provost and Vice President for Academic Affairs’ Plan may modify the Proposal based upon consideration of the Faculty Senate Response and the Response from faculty in the affected Academic Program(s). The Provost and Vice President for Academic Affairs will have ultimate authority over the content of the Provost and Vice President for Academic Affairs’ Plan. The Provost and Vice President for Academic Affairs’ Plan will be forwarded to the President accompanied by copies of the Proposal, the Faculty Senate Response, and the Response from faculty in the affected Academic Program(s). A copy of the Provost and Vice President for Academic Affairs’ Plan and all attachments will also be forwarded to the Faculty Senate and the Faculty Regent.

The President shall review the Provost and Vice President for Academic Affairs’ Plan and accompanying documentation, giving special attention to any proposal for termination of tenured (and non-tenured) faculty. The President’s decision shall take careful account of the impact of the elimination of faculty appointments on the University’s ability to perform its educational role and mission.

The President may determine that no further action should be taken by the University, thereby ending the process; or, the President may accept or modify the Provost and Vice President for Academic Affairs’ Plan and forward to the Board of Regents a Plan for Elimination of Tenured and Tenure-Track Faculty (“President’s Plan”).

If the situation is one of financial exigency, then the President will also submit an overall Plan to Address Financial Exigency, (“President’s Exigency Plan”) as (s)he deems appropriate, encompassing both academic and non-academic programs and related elimination of faculty and staff appointments to the Board of Regents for its official action.

The President shall forward to the Provost and Vice President for Academic Affairs, Faculty Senate, and Staff Congress a copy of the President’s Plan (and, if necessary, the President’s Exigency Plan) submitted to the Board of Regents. Affected University employees will be informed, in writing, of the action of the Board of Regents.
 
 
ELIMINATION SEQUENCE
If a decision has been made to eliminate TTTC faculty members in an academic program due to low academic program productivity, a significant financial emergency, or financial exigency, then the following sequence will apply:

Tenured faculty members will have preference of retention over tenure- track faculty members.

Tenured faculty members of superior academic rank will have preference of retention over tenured faculty members of lesser academic rank.

If two tenured faculty members have the same academic rank, then the faculty member who attained rank earlier will have preference of retention over the faculty member who attained rank later.

If two tenured faculty members have the same academic rank and attained rank at the same time, then the faculty member who attained tenure earlier will have preference of retention over the faculty member who attained tenure later.

If two tenured faculty members have the same academic rank and attained rank at the same time and attained tenure at the same time, then preference of retention will be based on performance in teaching, scholarship, and service over the past six years.

At any of the five stages in the sequence, the order of preference may be modified if maintaining the order of preference would lead to a violation of accreditation standards or to an inability to offer critical courses in the program.

If funded vacancies exist, reasonable effort will be made to offer the tenured faculty member concerned another existing position within the University for which the tenured faculty member is qualified by education and experience.

In the event of the termination of a tenured faculty member, that faculty member will not be replaced for a period of three years by another person in a discipline in which the terminated tenured faculty member is qualified to teach or perform the job duties without first offering reinstatement to the terminated tenured faculty member and allowing a reasonable time for acceptance.

A terminated tenured faculty member who is recalled within the three- year period shall be reinstated with full tenure and time in rank as of the date of termination.
 
 
APPEAL
Any tenured faculty member or tenure track faculty member within a contract period, receiving notice of position elimination may appeal the determination to the Faculty Rights and Responsibilities Committee (FRR) by delivery of notice to the FRR Chair through the Office of the President within fourteen (14) days of receiving such notice. The appeal shall be made on the basis that the faculty member’s position was not appropriately selected for elimination and/or that due process was denied. The following procedure shall apply to the appeal hearing:
The hearing shall be before the full FRR except that no committee member from the faculty member’s department shall be allowed to serve, no committee member related to the faculty member may serve, nor may a committee member with any other conflict of interest serve. If the chair of the FRR is disqualified, then a chair for the hearing shall be selected by the FRR prior to the hearing.

The hearing shall be set by the FRR Chair not less than 15 calendar days or more than 25 calendar days from the date of appeal unless agreed otherwise by the Provost and Vice President for Academic Affairs and the faculty member.

The faculty member will have the option of having a hearing that is open or closed to the public, except as may be required by law.

The faculty member may consult with or retain legal counsel at his or her own expense to provide representation during the hearing. The FRR shall be advised by Morehead State University’s Office of the General Counsel or its designee. The Provost and Vice President for Academic Affairs, or other administrator presenting the position of the administration, may consult with or be represented by separate legal counsel contracted by the University to provide representation during the hearing.

The hearing proceedings will not be governed by formal, legal rules of procedure and evidence. The FRR may consider any information that has a probative value.
Statements to the FRR, documentary evidence, and testimony by witnesses will be subject to requirements of civility and relevance.

The Provost and Vice President for Academic Affairs or his/her counsel will have the right to call and cross- examine witnesses and to present documents and other evidence supporting the decision to eliminate the faculty member’s position.

The faculty member or his/her counsel will have the right to call and cross- examine witnesses and to present documents and other evidence disputing the decision.
The Provost and Vice President for Academic Affairs, or his/her counsel, and the faculty member, or his/her counsel, will have the right to confront and cross-examine each other's witnesses.

The Chair of the FRR may restrict redundant testimony in the interest of ensuring an efficient hearing process.

Any individual scheduled to appear as a witness, with the exception of the faculty member and the Provost and Vice President for Academic Affairs, will not be present in the hearing room except when testifying.

A written record of appearances and sworn testimony of the concerned parties and witnesses will be maintained.

A verbatim record of the hearing will be recorded by a court reporter and may be transcribed as requested. The recording will be provided at no cost to the faculty member upon request.
The burden of establishing a rational basis for the decision rests at all times with the Provost and Vice President for Academic Affairs.

The following hearing agenda will apply:
A reading, by the Chair of the FRR, of the notice to the faculty member of the decision to eliminate his/her position.
Presentation of evidence by the Provost and Vice President for Academic Affairs or his/her counsel supporting the decision;
Presentation of evidence by the faculty member or his/her counsel refuting the decision;
Presentation of rebuttal evidence as may be appropriate;
Summation or statement not to exceed 30 minutes by the faculty member or his/her counsel; and
Summation or statement not to exceed 30 minutes by the Provost and Vice President for Academic Affairs or his/her counsel.
 
At the conclusion of the hearing, the FRR will go into closed session to discuss the evidence presented at the hearing and to vote on whether there exists a rational basis for the decision to eliminate Appellant’s position and/or whether the faculty member received due process. The FRR may request the presence of the General Counsel at any time during the deliberations.
The FRR will produce a written report of the committee’s “findings of fact” (evidence that the FRR believes to be true) and conclusions as to whether a rational basis exists for the position elimination and/or due process was denied based upon the record considered as a whole. The report will also include the vote. Dissenting minority opinions may be included in the report.
Copies of the FRR's report will be sent to the President, the Provost and Vice President for Academic Affairs, and the faculty member.

The faculty member and the Provost and Vice President for Academic Affairs may elect to respond in writing to the FRR’s decision and shall file such response with the President within 10 business days of the FRR’s decision. Copies shall be sent to the other party.

The President shall review the FRR's report and will determine whether to allow the elimination of the position to stand, reverse the decision to eliminate the position or craft such other relief as may be appropriate.

Within five business days of his decision, the President shall notify, in writing, the faculty member, the Provost and Vice President for Academic Affairs, the Chair of the FRR, the Faculty Senate Chair, the Chair of the Board of Regents and the Faculty Regent.

If the faculty member is not in agreement with the decision of the President, then he/she may further appeal to the Board of Regents by filing a letter of appeal with the Chair of the Board through delivery to the Secretary of the Board. The letter of appeal shall be filed within 10 business days of receipt of the President’s decision. Said appeal shall be heard on the written record and may be assigned by the Chair, at his/her discretion, for a review by a panel of three Board members or for review by the full Board. If the appeal is assigned for review by the panel, it shall make a written recommendation to the full Board for final action.

The Board Chair shall send written notice of the decision to the faculty member, President, Provost and Vice President for Academic Affairs, Chair of the FRR, and Chair of the Faculty Senate.