University Handbook, Appendix B:
The Kansas Board of Regents
(BOR 9-21-79, Amended 5-11-83)
- Definition. Financial exigency is the formal recognition by a Regents institution that known reductions in budget or authorized number of positions have required the elimination of non-tenured positions and operating expenditures to such a point that further reductions in these categories would seriously distort the academic programs of the institution; hence, further budget or position reductions would require the non-reappointment of tenured members of the faculty or the failure to meet the standards of notice for non-reappointment of faculty. It is not a requirement of financial exigency that all non-tenured positions throughout the University be first eliminated.
- Procedure. It shall be the responsibility of the chief executive officer of each Regents
institution, in consultation with appropriate
campus groups, to develop a plan for reductions in personnel as necessitated by
conditions of financial exigency.
In the event that financial conditions at a Regents institution may warrant the declaration of financial exigency, the chief executive officer shall notify the Board of Regents of that fact and shall provide a complete statement of the circumstances that may warrant the declaration of financial exigency. The statement shall also include a review of all reasonable alternatives to financial exigency.
If the Board of Regents and the chief executive officer concur as to the existence of a financial exigency, it shall be the responsibility of the chief executive officer to so declare.
It shall be the responsibility of the chief executive officer to review the financially exigent condition with the Board of Regents at such times and with such frequency as the Board may specify.
- According to the tenure policy adopted by the Board of Regents on April 18, 1947, a tenured faculty member can only be released for the following reasons: "Adequate cause, except in case of retirement for age, or under extraordinary circumstances because of financial exigency." While the term financial exigency was not defined in that policy statement, traditionally it has been interpreted as a major unforeseen financial crisis affecting the very survival of the institution, and it is on this basis that faculties have accepted financial exigency as a ground for breaking the tenure contract. The definition of financial exigency adopted by the Board of Regents on September 21, 1979, substitutes a legislatively imposed financial difficulty for the "extraordinary circumstances" of a genuine financial crisis.
- Given that any definition of financial exigency affects the role of tenure in our University, and hence may greatly affect the welfare of those institutions as well as the faculties thereof, we believe that any attempt to explicitly define financial exigency should be arrived at on a collegial basis.
For the above reasons, we do not view the definition of financial exigency which was adopted by the Board of Regents on September 21, 1979, as a necessarily valid interpretation of the term "financial exigency." We hope that our concerns can be alleviated through a collegial approach to the issues which underlie the definition of financial exigency adopted by the Board of Regents. (FSM 1-15-80)
Statement on Financial Exigency
by Duane Acker, President
Kansas State University
Because a substantial portion of our financial resources is tied directly to enrollment, the decrease in high school enrollments which is expected over the next decade will probably result in a reduction in available resources.
Our best projections suggest that, while we probably have already peaked in enrollment, the size of the decrease will not be significant until 1982. It probably will be quite substantial between 1982 and 1986, and then will level off or even turn slightly upward.
Given our current situation and these trends, we can expect to do some belt tightening over the next decade. It is not at all certain that we would have to declare a state of financial exigency, but we should be prepared for this possibility.
Given the worst of outcomes in the faculty and staff effort to improve recruitment and retention of students, we have several years before financial exigency would have to be considered. But because financial planning requires a lead time of about two and one-half years, we should have a financial exigency plan ready by the end of the current fiscal year.
I. Principles Which Will Characterize Our Plan
- An acceptable plan will give major emphasis to two objectives:
- It must lead to decisions which guard the integrity of the University (i.e., which permit the University to address its purposes effectively).
- It must provide individuals with a guarantee of fair and humane treatment.
- An acceptable plan must provide for meaningful participation in the decision-making process on the part of those affected by the decisions.
- An acceptable plan must provide appropriately for the review and appeal of recommendations affecting personnel.
- An acceptable plan must guarantee that the University will invoke financial exigency only when it can be demonstrated that a reduction in tenured positions is essential to the University's capacity to fulfill its goals and obligations.
- The process will not be characterized by arbitrary and dictatorial decision-making by administrators; provision will be made for meaningful faculty participation.
- We will not make decisions which would destroy the University's ability to conduct
its programs effectively.
- State laws will not allow us to transfer funds appropriated for one purpose (e.g., agricultural research; operating costs) to support another (e.g., faculty salaries).
- We must not allow ourselves to change drastically the proportion of money which is spent for professional salaries, support salaries, and operating costs; to be effective, programs need professionals, support and funds for operating expenses.
- All reasonable steps to honor our commitment to tenured persons will be taken. When personnel reductions are essential, we will look first to vacancies created by retirement, resignations, and unfilled lines. We will next examine positions which are not on a tenure track. Next will be non-tenured personnel. Unless there is compelling evidence that the necessary reductions cannot be made from these sources, financial exigency will not be declared and no tenured faculty member will be dismissed because of financial exigency. We should use aggressively the sabbatical leave privilege and even periods of detached service for those tenured faculty who might seek a new assignment within the University in case of work-load shifts.
- This does not mean that departments which are tenured-in will be invulnerable to personnel reductions until all non-tenured personnel have been released. Such a policy would be destructive of University programs and unjust to faculty in departments where the tenure rate is low. The plan must be sensitive to the magnitude of teaching demands made on each department as well as the basic need for any university to have significant representation from the various fields of scholarship.
- The University will maintain its commitment and legal obligation to affirmative action and will safeguard, to the maximum extent possible, the gains made under these policies.
- A reasonable balance will be maintained in positions devoted to our primary missions (instruction, research, and public service) and our support programs (Library, student services, administration). When reductions are made, they will be made in a roughly proportional way from these broad areas.
- The processes we will follow will provide for due process for the individual faculty and staff members who are affected.
- Should it be necessary to terminate a tenured person, the University will attempt to assist the person to relocate and our policy will ensure that such individuals will have priority for re-hiring as appropriate opportunities arise.
The Committee on University Planning has forwarded a document outlining the procedures to be followed after financial exigency has been declared. A second committee is now deliberating on a) the definition of financial exigency, and b) recommendations which will help us avoid the need to declare financial exigency.
Because these two documents will necessarily be interdependent, they will be considered jointly as we attempt to establish policies consistent with the principles just enunciated.
Delivered to Kansas State University Faculty Senate, November 14, 1978.
Financial Exigency Plan
Kansas State University
- Introduction and Definition
- Statement of Governing Concerns
- Programs for Avoiding the Termination of Appointments to Unclassified Positions
- Procedures for the Orderly Reduction of Unclassified Positions prior to the Declaration of Financial Exigency
- Process for Declaring Financial Exigency
- Procedures for the Orderly Reduction of Unclassified Positions after the Declaration of Financial Exigency
- Due Process
- Termination of Exigency
- Procedures for the Orderly Restoration of Unclassified Positions following the Period of Financial Exigency
- Timing of Financial Exigency Procedures
- AAUP Statement on Institutional Problems Resultingfrom Financial Exigency: Some Operating Guidelines
Definition of Terms
To avoid awkward or redundant passages in this document, the following terms were used, as defined below.
- The president refers to the person appointed to the position of president of Kansas State University.
- The Office of the President refers to the president, the provost, the Deans Council, or to any individuals or groups designated by the president to act in an administrative or consultative capacity in fulfilling the procedures called for in this document.
- College refers to any of the University's nine formally organized colleges and to the Library, the Division of Extension, and the General Administration. These "colleges" comprise the representative units of the Faculty Senate Committee on University Planning.
- Dean refers to the chief administrative officer of any of the 12 "colleges" as designated above.
- Department refers to academic departments and to those organizationally equivalent units that are subordinate to one of the 12 "colleges" designated above.
- Department head refers to the chief administrative officer of any academic department or organizationally equivalent unit that is subordinate to one of the 12 "colleges" designated above.
- Days as units of time designate those periods during which particular procedures must be carried out. No designated period of time, however, shall include a Saturday, Sunday, or a day on which the University is not in session.
Part I: Introduction and Definition
Kansas State University is an institution of higher education with important missions in instruction, research, and public service. In order to carry out these missions this University, following careful review, has granted tenure to selected members of its faculty to protect academic freedom and maintain the highest possible quality. For this reason the University is committed to do all it can to protect the positions of tenured faculty. Financial exigency, a condition of the University as a whole, is a compelling financial crisis that would jeopardize the ability of the University to carry out its various missions unless faculty positions are reduced by the release of one or more tenured faculty. Because of the seriousness of a condition requiring the release of tenured faculty, this document is developed to outline preventive measures, procedures to be followed in case of financial exigency, and faculty participation in these matters. As appropriate background for this document, Kansas State University endorses as guidelines the AAUP statement titled "On Institutional Problems Resulting From Financial Exigency: Some Operating Guidelines." (See Attachment B.) Further, for the purpose of this document a condition of "financial stress" will be considered one in which a net reduction of University faculty is required but no dismissal of tenured faculty will occur because of the financial situation.
Part II: Statement of Governing Concerns
As stated in the preface to this document, because the State enrollments and because such enrollments are anticipated to decline, Legislature's funding of university unclassified positions is, in part, linked prudent management requires that steps be taken 1) to lessen the degree of potential reductions in authorized positions, and 2) to assure, in the absence of acceptable alternatives, that the termination of appointments be done in a manner consistent with institutional needs and faculty rights.
In pursuing these steps, the University's administration and faculty must be governed by their recognition of institutional responsibilities, of faculty traditional and contractual rights, and of the legal restraints that impinge upon University programs and operations. Chief among these are the following and, as such, they are considered to be primary concerns in the implementation of all procedures in anticipation of potential position reductions:
- University Responsibilities
Procedures must assure the continuance of Kansas State University's vitality as a teaching, research, and service institution. Programs vital to these functions must be maintained at levels of excellence.
Doubtless, program vitality and essentiality are difficult to measure; however, such characteristics should typify those University functions which are necessary to mandated Regents, state, and federal obligations, which fundamentally support the University's academic and research programs, which serve increasing numbers of students, and which allow the University to respond to changing patterns or developments in education and research.
The pursuit of such ends necessitates that during times of financial stress new appointments may be necessary in some areas at the same time that non-tenured persons are being terminated in other areas. However, following the declaration of financial exigency, the University will not terminate tenured appointments in one area while making new appointments in another except in extraordinary circumstances where a serious distortion of academic programs would otherwise result. Further, the appointment of a faculty member with tenure will not be terminated in favor of retaining a faculty member without tenure, except under circumstances where a serious distortion of academic programs would otherwise result.
- Faculty Traditional and Contractual Rights
University excellence during periods of financial stress and exigency requires the continued recognition that faculty are serving as individuals to fulfill their personal professional goals and the University's missions. Fundamental to that recognition is the continued affirmation, especially during periods of stress or exigency, of 1) established procedures of University governance and of 2) faculty rights, privileges, and obligations as stipulated in the University Handbook. Of special concern is that the faculty participate significantly in decisions that eventuate in position reductions and appointment terminations that alter program offerings, or that affect the continuance of University academic and research services. Of special concern, also, is the recognition of the importance that tenure plays in assuring the excellence of the University and its faculty and staff.
- Policy and Statutory Constraints
Of singular concern, also, during periods of financial stress and exigency is that University procedures be in compliance with those restraints placed upon it by custom and statute. The following restraints are of chief moment.
- Due process must be scrupulously followed under, and in anticipation of, financial exigency. The provisions of the present document, the University Handbook, and Board of Regents policies concerning the procedures for and timing of terminations shall be followed in all cases.
- Provisions for employment or termination of persons shall be in compliance with Board of Regents, state, and federal mandated responsibilities in teaching, research, and service.
- Affirmative action policies and procedures must be followed. Terminations under financial stress or exigency shall neither create nor increase an affected goal-setting unit's underutilization of women or minorities except and as necessary to maintain vital University programs and services. However, during periods of financial stress, our affirmative action policy will not be interpreted in such a way as to force a declaration of financial exigency. Underutilization will be determined in accord with the utilization analysis contained in the Affirmative Action Plan current at the time that a termination decision is made and such decisions shall be reviewed by the president and the University's Office of Affirmative Action.
Part III: Programs for Avoiding the Termination of Appointments to Unclassified Positions
To lessen the potential effects of enrollment decreases, the University must take 1) steps that would encourage optimum enrollments and 2) measures which would effect the retention of the maximum number of faculty and staff positions. To assist in the implementation of these ends, the University should appoint a committee of seven persons, three appointed by the president, three appointed by the Faculty Senate, and one appointed by the Student Senate. The committee shall be charged with an advisory role and will monitor activities, such as the following, which are to be implemented by appropriate University offices. The committee will report annually to the Office of the
President and to the Faculty Senate on the progress of such steps and measures.
- Steps to Encourage Enrollments
- The University must continue its present efforts to retain able students who enroll at the University under its various residence and off-campus programs. Improved enrollment and academic advising procedures should be supplemented by programs which address non-academic related student problems.
- The University should analyze changing needs and patterns of higher education and should actively encourage departments and combinations thereof to serve aggressively the new career needs of all learners in both student and vocational-professional statuses.
- The University should review those practices which discourage its faculty from pursuing
academic and professional programs which
responsibly answer to their individual and to the University's needs. Procedures
should be encouraged which would allow faculty retraining
during times of financial stress or exigency when such retraining may lead to personnel
- Measures for Retaining Positions
- To facilitate planning for periods of imposed reductions, the University should maintain a current roster of all unclassified personnel showing academic affiliation, retirement date, sabbatical leave, and tenured status.
- The University must seek through appropriate bodies for the means to make early retirements a feasible alternative to forced reductions. Present inflation levels and retirement benefits prevent many faculty members from considering retirement at age 65.
- The University should develop procedures that would allow for interdepartmental transfers of personnel and for the use of soft monies to maintain positions.
- The University should establish and abide by guidelines that will facilitate the filling of vacancies on a temporary basis (term appointees, visiting professorships, etc.). Although tenure-track appointments will doubtless be made to preserve key activities, such appointments should be minimal and be subject to all-University and unit limits and to approval by the president.
Part IV: Procedures for the Orderly Reduction of Unclassified Positions Prior to the Declaration of Financial Exigency
To assure the meaningful participation of both staff and faculty at the University, college, and department levels in decisions leading to reductions in unclassified personnel, the following committees will be established: the Faculty Senate Committee on University Planning (FSCOUP), the College Committee on Planning (CCOP), and the Department (or "other unit") Committee on Planning (DCOP). Members of these committees will be limited to and elected by tenured unclassified personnel as well as those with the rank of instructor or above not designated as term (this latter group includes persons on the tenure track and those with the same rights of notice as persons on the tenure track) that are assigned to a college, department, or other unit. Department heads, although eligible to serve on and elect members to FSCOUP and CCOP, are not eligible to serve on or elect members to DCOP. Other administrators (as defined in Article II, Section A.2. of the Faculty Senate constitution) are eligible to be elected to the vote for members to FSCOUP and the committees on planning to be established for administrative units equivalent to "college" and "department." (FSM 9-14-82)
The character and composition of these committees and the conditions initiating their activities are as follows:
- FSCOUP shall participate with the Office of the President in decisions resulting in the allocation of personnel reductions at the University level when a condition of financial stress necessitates notification of non-reappointment of one or more full-time persons serving at the rank of instructor or above with an appointment not designated as term. When such a condition is indicated, the president shall so notify the president of Faculty Senate who will then initiate the participation of FSCOUP. FSCOUP is composed of one elected member from each of the University's nine colleges, the Library, the Extension division, and the general administration and includes, in a non-voting capacity, the Student Senate representative to Faculty Senate. The caucus of each Faculty Senate group elects the college's representative, and those elected serve initial terms of one, two, or three years as decided by lot by the Faculty Senate Executive Committee. Succeeding terms are to be for three-year periods. See Appendix E, Section IIIC.
- Each CCOP shall participate in applicable decision-making procedures with the office
of its dean when the Office of the President in
consultation with FSCOUP allocates reductions which necessitate, within the college,
the non-reappointment of a full-time person serving at
the rank of instructor or above with an appointment not designated as term.
A CCOP, a committee within any of the University's nine colleges, Extension, the Library, and the general administration, shall be limited to nine members and no department or comparable designation within the college may hold committee positions greater than 25 percent of the CCOP membership, unless the composition of the college is such that this is impossible, in which case no department or comparable designation within the college may hold committee positions greater than four-ninths of the CCOP membership.
- Each DCOP shall participate in applicable decision-making procedures with its department
head when the above allocation of personnel
reductions would result in the non-reappointment within the department of a full-time
person serving at the rank of instructor or above
with an appointment not designated as term.
A DCOP is representative of a department or comparable designation that is subordinate to one of the 11 University units described under CCOP. The composition and size of such committees shall be determined by a majority vote of those department members eligible to vote for committee membership.
Decisions which effect a reduction in unclassified positions shall place emphasis upon 1) the preservation of essential University programs and functions, 2) the compliance with the University's commitment and legal obligation to affirmative action, and 3) the continuance in position of faculty and staff members of demonstrably superior merit. With the assurance of such conditions and prior to a declaration of financial exigency, positions will be withdrawn as necessary from the following groups, listed in the order or decreasing vulnerability: a) vacancies, b) non-tenure-track positions, and c) non-tenured, tenure-track positions. Within these vulnerability groups and within a particular department, vulnerability shall be in decreasing order--non-professorial ranks, assistant professors, associate professors, professors--and within those ranks from those with least years of service in that category to those with most. When necessary to assure compliance with the requirements of 1, 2, or 3 above, departures from such order will be made and their rationale in writing be given to appropriate faculty committees.
Part V: Process for Declaring Financial Exigency
Having been notified by one or more deans that tentative University personnel reductions will necessitate the non-reappointment of a tenured person, the president of the University, after consultation with FSCOUP and the Deans Council, will determine whether or not the financial status of the total University warrants the declaration of financial exigency. If so, the president will initiate the process of declaring financial exigency by notifying the president of Faculty Senate of an intention to announce that the University is in a state of financial exigency. The president of the Faculty Senate will call a special session of the Senate at which the president of the University will declare that a state of financial exigency exists and will present the rationale for that decision. A written version of the president's remarks will be distributed to the entire faculty within three days of the special session of the Faculty Senate. The provisions for dealing with the state of financial exigency will takeeffect on the day of the special session of the Faculty Senate.
Part VI: Procedures for the Orderly Reduction of Unclassified Positions After the Declaration of Financial Exigency
Following the initial declaration of financial exigency by the president of the University, after consultation with FSCOUP, the Deans Council, and other University personnel, the Faculty Senate Executive Committee shall, within seven days of the special Faculty Senate meeting described in Part V, submit to the University president and faculty a written response to the president's declaration of financial exigency. The response must include a statement by the Senate Executive Committee as to whether it does or does not believe that further responsible recourse is possible other than the dismissal of tenured personnel. If one or more of the committee's members dissent from the majority opinion, the committee's formal response to the president and the faculty shall include a minority report describing the reasons for such dissent.
- University Procedures
The Office of the President, in consultation with FSCOUP, will confirm or revise the apportionment of the reductions in positions to the colleges. Generally, decreases in the number of authorized positions for the University's educational program will be so apportioned among administrative personnel, Library staff, and
collegiate faculties that such groups will maintain the same relative distribution of positions as existed prior to imposed reductions in authorized unclassified positions. However, when specific needs are manifestly paramount, the Office of the President in consultation with FSCOUP may apportion reductions in accordance with relative needs and program essentiality. When reductions are apportioned, factors such as the following must be considered: source of funding, policies or mandates of the Board of Regents, long-range projections of enrollments, and state and federal mandated responsibilities.
Each college shall be notified of its proposed reductions within 20 days following the president's declaration of financial exigency. Written notification and the supporting rationale shall be made accessible to all members of the Faculty Senate and to the Student Senate and shall be placed on file for general examination in the office of each college.
Simultaneously with the filing of the notices indicated in the previous paragraph, any member of the University faculty, staff, or student body who claims to be significantly and improperly affected by the college reductions may present written supportive evidence to FSCOUP within seven days. If such supportive evidence is presented, FSCOUP shall convene within three days to consider such written evidence and shall forward its recommendations within an additional three days to the University president, to the Faculty and Student Senates, and to the administrative offices of the colleges.
The president shall within seven days notify all administrative units of the disposition of those recommendations.
- College Unit Procedures
Within ten days of receiving the president's notification, the dean of each college, in consultation with the appropriate CCOP, will apportion to the departments the designated number of position reductions and will forward the apportionment decisions and supporting rationale to each of the college's department heads and FSCOUP for their appropriate action and to the Deans Council and the University president for their information. Copies of such decisions and supporting rationale shall be made available to departmental faculties, staff, and students by being deposited in each department office.
Following the filing of the decision indicated in the previous paragraph, any member of the University faculty, staff, or student body who claims to be significantly and improperly affected by a department's reductions may present written supportive evidence to the appropriate CCOP within seven days. If such supportive evidence is presented, the CCOP shall convene within three days to consider such written evidence and shall forward its recommendations to the college dean and to the department heads within an additional seven days. The dean, in turn, shall within seven days inform all department heads of the disposition of those recommendations.
- Department Unit Procedures
Within 40 days of the president's declaration of financial exigency at Faculty Senate, each department's DCOP shall, in consultation with its department head, prepare and forward its department's financial exigency plan to the appropriate dean and CCOP. Although a department may eventually choose an alternative plan under procedures governing fractional reductions as described in Section 2 below, its initial plan shall indicate the order of vulnerability in the event that the department loses unclassified positions as a result of forced reductions.
- Design, submission, and acceptance of department exigency plans. In designing the
department's exigency plan, the department head and
the DCOP, elected as described in Part IV above, shall be guided by the stipulations
in a and b below.
- The order of vulnerability. Positions within departments shall be selected for elimination
from the following groups, listed in
decreasing order of vulnerability: 1) vacancies, 2) non-tenure track positions,
3) non-tenured, tenure-track positions, and 4) tenured
positions. Within a given group, vulnerability shall be in decreasing order as
follows: non-professorial ranks, assistant professors,
associate professors, professors. The order of withdrawal of positions from each
such category shall proceed from those with the least
years of service in that category to those with the most. The above order of vulnerability
will be followed exception extraordinary
circumstances where a serious distortion of academic programs or a violation of
the University's affirmative action policies and procedures
If a department's plan, in order to meet the needs of program viability or affirmative action commitments, does not employ the above order of vulnerability, the exceptions are to be determined by the department head in consultation with the DCOP and must be approved by a two-thirds majority vote of the department's tenured members. Upon its completion, the department plan and its supporting rationale shall be forwarded to the appropriate dean and CCOP for review and shall be made accessible for general examination by being placed on public file in the department office.
- College approval of departmental plans. Within seven days of a plan's submission to
the appropriate college dean and CCOP, any
department member or student who claims to be significantly and improperly affected
by the plan's requirements may file written evidence
with the department head and CCOP to support that judgment and such evidence shall
be considered in the dean's and CCOP review of that
Within 54 days of the president's declaration of financial exigency at Faculty Senate, each CCOP, after consultation with its dean, shall by majority vote sand improperly accept or reject its individual departments' plans. Unless a plan affects an individual or an essential University program or violates the University's commitment to affirmative action, the department's CCOP, in consultation with the appropriate dean, shall accept the plan as submitted. The CCOP shall notify its college departments of the voting results.
If a department's plan is found unacceptable by its CCOP for any of the above reasons, the CCOP shall recommend modifications to the department for its consideration within three days. The department must respond to the CCOP within ten days. If differences between the department and the CCOP cannot be resolved, the dean shall, within seven days, and after appropriate consultation, modify the plan as is deemed necessary to satisfy the needs of the department, the college, and the University.
The CCOP, within seven days after completing the final reviews of its departments' plans, shall submit to the president and FSCOUP a report indicating the college departments' order of overall reductions in positions and the potential impact of those reductions on the college and the University's academic and service programs. This report, when approved by the University president after consultation with appropriate individuals and bodies, shall be forwarded to all University departments and to the Faculty Senate by the University president within 14 days of its initial submission by each CCOP.
The procedures described above in a) and b) shall be completed within 95 days of the president's declaration of financial exigency at Faculty Senate. An approved departmental plan cannot be altered until three consecutive fiscal years have elapsed.
- The order of vulnerability. Positions within departments shall be selected for elimination from the following groups, listed in decreasing order of vulnerability: 1) vacancies, 2) non-tenure track positions, 3) non-tenured, tenure-track positions, and 4) tenured positions. Within a given group, vulnerability shall be in decreasing order as follows: non-professorial ranks, assistant professors, associate professors, professors. The order of withdrawal of positions from each such category shall proceed from those with the least years of service in that category to those with the most. The above order of vulnerability will be followed exception extraordinary circumstances where a serious distortion of academic programs or a violation of the University's affirmative action policies and procedures would result.
- Substitution and acceptance of fractional reductions. The designing of an approved
financial exigency plan which designates the order
under which persons are to be released is a need dictated by the requirements of
prudent planning and the protection of individual rights.
All departments must answer to such obligations. Having done so, however, a department
may choose an alternative means of satisfying the
demands that an imposed reduction places upon it.
Within seven days of the president's filing of each college's financial exigency plan with the departments and the Faculty Senate, each department's DCOP shall conduct a referendum among the departmental faculty at the rank of instructor or above to determine whether the imposed reductions shall be met by fractional decreases in the appointments of all faculty in the department or by the elimination of full, individual positions. A unanimous vote is required for the approval of department-wide fractional reductions. (Should the vote not be unanimous, individual faculty members may, of course, voluntarily agree to take fractional cuts in order to avoid dismissing one or more persons.) Within seven days, the DCOP shall forward the department's decisions to the dean for review and action.
If an approved plan for fractional reductions satisfies the department's obligations under the CCOP's allocation of imposed reductions, that plan shall be employed as an alternative to the dismissal of one or more persons. Such a plan must be reviewed annually by the department and the CCOP for its continued use, modification, or termination.
- Design, submission, and acceptance of department exigency plans. In designing the department's exigency plan, the department head and the DCOP, elected as described in Part IV above, shall be guided by the stipulations in a and b below.
- Notification of Individuals To Be Released
If a department decides to eliminate full, individual positions, the department head shall, within two days, forward the names of those designated for release in the department's exigency plan to the president and to the Office of Affirmative Action. Within seven days, the University president shall notify, in writing, FSCOUP and those individuals who are designated for release. Such individuals must be notified at least one year before the effective date of release unless (such timing proves) impossible in which case such notice shall be provided as early as feasible. (BOR 9-21-79)
Within 30 days after notification, FSCOUP shall examine the qualifications of each tenured person designated for release to determine whether that person will qualify for candidacy to fill a vacancy within another area of the University. These findings shall be forwarded to the University president who shall within seven days notify all tenured persons designated for release of their candidacy qualifications for service in other positions. Ultimate selection to fill the vacancy shall be made in accordance with normal departmental procedures.
Part VII: Due Process
Due process must be scrupulously followed under, and in anticipation of, financial exigency. All rights and privileges of persons to seek remedy through the Grievance Chair shall also apply to actions taken by the University under, or in anticipation of, conditions of financial exigency. Any appeal must be based on one or more of the following grounds:
- The University had no reasonable basis in fact for selecting the tenured appellant for release;
- The selection of the appellant failed to follow procedures described in the present document; or
- The selection of the appellant was based on constitutionally impermissible reasons.
The University president shall respond in writing to the recommendations of the Grievance Panel. The current procedures of Appendix G shall apply to such appeals to the extent that they are not inconsistent with this document.
Part VIII: Termination of Exigency
The president, following consultation with FSCOUP and the Deans Council, will declare the end of financial exigency at such time as the financial status of the University warrants. However, if financial exigency is to continue more than a year the president, following consultation with FSCOUP and the Deans' Council, will annually present a financial status report to the Faculty Senate and indicate that financial exigency will continue.
Part IX: Procedures for the Orderly Restoration of Unclassified Positions Following the Period of Financial Exigency
When the president in the annual review of financial exigency at Faculty Senate indicates that no tenured person shall be dismissed except for cause during the coming academic year, the period of financial exigency shall be considered terminated. Tenured persons who took fractional reductions in their appointments in order to meet financial exigency conditions shall have their appointments returned to full time as promptly as is possible. That is, as vacancies to be filled occur in their departments, they shall be evenly distributed over prior reduced appointments.
A tenured person released according to the procedures applicable to and in consequence of financial exigency shall at the time of termination be placed on lay-off status, a condition which will assure the person continuance of all permissible rights available to tenured persons. Such a person shall remain on lay-off status for five years after the termination of exigency or until the person:
- accepts or rejects an offer of appointment to the position from which the person was released;
- accepts or rejects an offer of appointment to a position within the University comparable in status and compensation to that from which the person was released;
- fails to notify the University president by December 1 of each year that the person
wishes to continue on lay-off status and fails to
provide the University president with a statement indicating the person's present
location and employment status; or 4. resigns.
- Unit Allocation of Restored Positions
The allocation of restored positions after a period of financial exigency shall be determined by the Office of the President in consultation with FSCOUP until no tenured persons remain on lay-off status.
With the elimination of all tenured persons from lay-off status, the functions of the DCOP and CCOP committees shall be suspended.
- Reinstatement Rights of Individuals
During and upon emergence from financial exigency, the University must honor the reinstatement rights of tenured persons released under financial exigency. The University president shall notify (by certified mail, return receipt requested to the latest address supplied by the individual) all released tenured persons on lay-off status whenever a position becomes available for which the FSCOUP review has indicated them to be qualified for candidacy. If a vacancy occurs or a position is restored in a department from which such individuals were released because of financial exigency, those persons shall be offered reinstatement in reverse order. If in another department a vacancy occurs for which a released tenured person on lay-off status is qualified for candidacy, that person shall be so notified and shall be considered for the position through the department's normal selection process.
Persons released under financial exigency who claim that their reinstatement rights have been infringed upon shall have access to the then current procedures of Appendix G to the extent that such procedures are consistent with the terms of this document.
- Review Procedures
Not later than five years after the official adoption of a financial exigency document by the University president, and providing the University is not in a state of financial exigency, the document shall be reviewed by the University president and by FSCOUP and thus reported to the Faculty Senate.
- Unit Allocation of Restored Positions
Part X: Attachment A
|Timing of Financial Exigency Procedures||By Day|
|President declares financial exigency at Faculty Senate meeting||1|
Faculty Senate Executive Committee responds to president's declaration of financial exigency
|FSCOUP forwards college reduction allocations to deans and the Faculty and Student Senates||21|
|Filing of appeals over college reduction allocations with FSCOUP||28|
|FSCOUP forwards recommendation concerning college reduction allocation appeals to president||35|
|Department plan filed in department office and forwarded to dean and CCOP||41|
President informs colleges of disposition of appeal recommendations
|Appeals over department plans filed with department head and CCOP||48|
|CCOP and dean forward reduction allocations to departments and FSCOUP||52|
|CCOP votes on department plans||55|
CCOP notifies departments of CCOP vote on and recommendations for department plans
Appeals over department reduction allocations filed with CCOP
Department responds to CCOP recommendations regarding unacceptable department plans
|CCOP forwards recommendations on department reduction allocations appeals to dean and department heads||70|
Dean forwards arbitration decisions to CCOP and department heads
|Dean notifies department heads of disposition of CCOP appeal recommendations||77|
|CCOP reports department plans to president and FSCOUP||82|
|President forwards college report of department plans to Faculty Senate||96|
|Departments vote on fractional reductions||103|
|DCOP forwards referendum decision to dean||110|
|Department head forwards names of those to be released to the president and to the Office of Affirmative Action||112|
President notifies individuals to be released and forwards their names to FSCOUP
|FSCOUP forwards reassignment examination findings to president||149|
|President notifies individuals who cannot be reassigned||156|
Part X: Attachment B
American Association of University Professors Statement on Institutional Problems Resulting from Financial Exigency: Some Operating Guidelines
The guidelines which follow reflect Association policy as set forth in the Recommended Institutional Regulations on Academic Freedom and Tenure, The Role of the Faculty in Budgetary and Salary Matters, and other policy documents. They were formulated by the Association's staff, in consultation with the Joint Committee on Financial Exigency, Committee A on Academic Freedom and Tenure, and Committee T on College and University Government. They were first issued in 1971, and reissued in slightly revised form in 1972.
- There should be early, careful, and meaningful faculty involvement in decisions relating to the reduction of instructional and research programs. In making such decisions, financial considerations should not be allowed to obscure the fact that instruction and research constitute the essential reason for the existence of the university.
- Given a decision to reduce the overall academic program, it should then become the primary responsibility of the faculty to determine where within the program reductions should be made. Before any such determination becomes final, those whose life's work stands to be adversely affected should have the right to be heard.
- Among the various considerations, difficult and often competing, that have to be taken into account in deciding upon particular reductions, the retention of a viable academic program should necessarily come first. Particular reductions should follow considered advice from the concerned departments, or other units of academic concentration, on the short-term and long-term viability of reduced programs.
- As particular reductions are considered, rights under academic tenure should be protected. The service of a tenured professor should not be terminated in favor of retaining someone without tenure who may at a particular moment seem to be more productive. Tenured faculty members should be given every opportunity, in accordance with Regulation 4(c) of the Association's Recommended Institutional Regulations on Academic Freedom and Tenure, to readapt within a department or elsewhere within the institution; institutional resources should be made available for assistance in readaptation.
- In some cases, an arrangement for the early retirement of a tenured faculty member, by investing appropriate additional institutional funds into the individual's retirement income (and ordinarily feasible only when social security benefits begin), may prove to be desirable if the faculty member is agreeable to it.
- In those cases where there is no realistic choice other than to terminate the services of a tenured faculty member, the granting of at least a year of notice should be afforded high financial priority.
- The granting of adequate notice to non-tenured faculty should also be afforded high financial priority. The nonreappointment of nontenured faculty, when dictated by financial exigency, should be a consideration independent of the procedural standard outlined in the Recommended Institutional Regulations 4(c), with one exception: when the need to make reductions has demonstrably emerged after the appropriate date by which notice should be given, financial compensation to the degree of lateness of notice should be awarded when reappointment is not feasible.
- A change from full-time to part-time service, on grounds of financial exigency, may occasionally be a feature of an acceptable settlement, but in and of itself such a change should not be regarded as an alternative to the protections set forth in the Recommended Institutional Regulations 4(c) or as a substitute for adequate notice.
- When one institution merges with another, the negotiations leading to merger should include every effort to recognize the tenure of all faculty members involved. When a faculty member who has held tenure can be offered only a term appointment following a merger, he should have the alternative of resigning and receiving at least a year of severance salary.
- When financial exigency is so dire as to warrant cessation of operation, the institution's highest obligation in settling its affairs should be to assist those engaged in the academic process so that, with minimal injury, they can continue their work elsewhere.
See AAUP Operating Guidelines, Attachment B.
The text of Recommended Institutional Regulations 4(c), as revised and published in 1976, is as follows:
(c)(1) Termination of an appointment with continuous tenure, or of a probationary or special appointment before the end of the specified term, may occur under extraordinary circumstances because of a demonstrably bona fide financial exigency, i.e., an imminent financial crisis which threatens the survival of the institution as a whole and which cannot be alleviated by less drastic means.
Note: Each institution in adopting regulations on financial exigency will need to decide how to share and allocate the hard judgments and decisions that are necessary in such a crisis.
As a first step, there should be a faculty body which participates in the decision that a condition of financial exigency exists or is imminent and that all feasible alternatives to termination of appointments have been pursued.
Judgments determining where within the overall academic program termination of appointments may occur involve considerations of educational policy, including affirmative action, as well as of faculty status, and should therefore be the primary responsibility of the faculty or of an appropriate faculty body. The faculty or an appropriate faculty body should also exercise primary responsibility in determining the criteria for identifying the individuals whose appointments are to be terminated. These criteria may appropriately include considerations of age and length of service. The responsibility for identifying individuals whose appointments are to be terminated should be committed to a person or group designated or approved by the faculty. The allocation of this responsibility may vary according to the size and character of the institution, the extent of the terminations to be made, or other considerations of fairness in judgment. The case of a faculty member given notice of proposed termination of appointment will be governed by the following procedure.
(c)(2) If the administration issues notice to a particular faculty member of an intention to terminate the appointment because of financial exigency, the faculty member will have the right to a full hearing before a faculty committee. The hearing need not conform in all respects with a proceeding conducted pursuant to Regulation 5 (dismissal proceedings), but the essentials of an on-the-record adjudicative hearing will be observed. The issues in this hearing may include:
(i) The existence and extent of the condition of financial exigency. The burden will rest on the administration to prove the existence and extent of the condition. The findings of a faculty committee in a previous proceeding involving the same issue may be introduced.
(ii) The validity of the educational judgments and the criteria for identification for termination; but the recommendations of a faculty body on these matters will be considered presumptively valid.
(iii) Whether the criteria are being properly applied in the individual case.
(c)(3) If the institution, because of financial exigency, terminates appointments, it will not at the same time make new appointments except in extraordinary circumstances where a serious distortion in the academic program would otherwise result. The appointment of a faculty member with tenure will not be terminated in favor of retaining a faculty member without tenure, except in extraordinary circumstances where a serious distortion of the academic program would otherwise result.
(c)(4) Before terminating an appointment because of financial exigency, the institution, with faculty participation, will make every effort to place the faculty member concerned in another suitable position within the institution.
(c)(5) In all cases of termination of appointment because of financial exigency, the faculty member concerned will be given notice or severance salary not less than as prescribed in Regulation 8 (at least a year of notice, for faculty members on continuous appointment).
(c)(6) In all cases of termination of appointment because of financial exigency, the place of the faculty member concerned will not be filled by a replacement within a period of three years, unless the released faculty member has been offered reinstatement and a reasonable time in which to accept or decline it.
See "1976 Recommended Institutional Regulations on Academic Freedom and Tenure," AAUP Bulletin, 62 (Summer, 1976), pp 184-191.