Disciplinary Action Appeals Board for University Support Staff
Revised November 2, 2016
Table of Contents
.025 Scope of Authority
.030 Appeal Process
.060 Hearing Procedures
The Kansas State University Appeals Board (referred to hereafter as the Appeals Board) hears appeals by University Support Staff of their demotion, suspension without pay, or dismissal. University Support Staff members were formerly members of the Kansas Civil Service ("classified staff") and had access to the Kansas Civil Service Board in appeals of demotion, suspension without pay, and dismissal. When the University implemented the move of this employee group from the Kansas Civil Service to the new University Support Staff (USS), the Appeals Board was created and these guidelines for appeals were developed to afford USS employees due process in matters of demotion, suspension, and dismissal.
Any allegation that the demotion, suspension without pay, or dismissal of a USS employee was discriminatory in violation of University policy must be brought by the USS employee to the Office of Institutional Equity under PPM Chapter 3010, which provides the exclusive procedure within the University for reviewing discrimination claims, and may not be raised on appeal before the USS Appeals Board.
In addition, for disciplinary action based on discrimination by a USS employee in violation of PPM Chapter 3010, there is a specific appeal process set forth in that chapter that the USS Appeals Board must use, rather than the process described in this chapter, except as provided in Section .065 below.
Kansas law (K.S.A. 76-715a) requires this appeal process for classified employees who convert to unclassified University Support Staff ("USS"). This conversion was approved by Kansas State University classified employees and the Kansas Board of Regents effective at the beginning of FY 2015.
Where a proposed demotion or dismissal is based upon two unsatisfactory performance reviews, the employee may appeal either the second review or the proposed action, but may not appeal both the review and the proposed disciplinary action within the University.
A USS employee not serving a probationary period may appeal a suspension without pay, demotion or dismissal to the Appeals Board up to 21 calendar days after the effective date of the disciplinary action. Appeals must be submitted in writing to the Vice President for Human Capital Services such that they are received by the VPHC office within 21 calendar days of the effective date of the disciplinary action.
The Kansas State University Appeals Board is composed of a fifteen member board, nine of which are USS and six of which are unclassified staff or faculty members, who are full-time employees of Kansas State University with at least 5 years of service with the university.
The VPHC (for pre-hearing matters, VPHC refers to a staff member of the VPHC office who serves as the VPHC's designee) will appoint board members from nominations for membership made by the USS Senate, Faculty Senate and members of the campus community at large. If the VPHC does not find a sufficient number of acceptable nominees, the VPHC will request additional nominees from the respective governance organizations. Appointments to the board are for three consecutive years with five members replaced each year, with the exception of the first two years (FY 2015 and FY 2016) when one group of five will serve one year, and one group of five will serve two years to start the staggered terms.
The chair and vice chair of the Appeals Board will be elected by the board members and officially appointed by the VPHC. The chair and vice chair will serve a one year term in those roles. The chair, or vice chair in the absence or recusal of the chair, will conduct the hearings during his or her term as chair.
Members of the Appeals Board will be required to attend training presented by representatives of Human Capital Services and the Office of General Counsel. The training will include information on the appropriate methods for conducting hearings, the rules regarding discipline governing the USS and the role and responsibilities of Appeals Board members and the chair.
An Appeals Board panel will be composed of three USS and two unclassified employees. Members of the Appeals Board panel cannot be from the same department as those involved in the appeal. Prior to serving on a panel, each board member is expected to sign a statement confirming that the member is unaware of any reason that would preclude him or her from acting fairly and impartially in deciding the matter before the Appeals Board panel and is not knowledgeable about the case. The VPHC shall designate the Appeals Board panel members. The Appeals Board chair will conduct the hearing and may attend the panel's deliberations but shall not be a voting member of the five-member panel.
When a written appeal is received by the VPHC, a copy of the appeal will be provided as soon as possible to the respondent involved in the appeal.
Hearings will be scheduled by the VPHC within 45 calendar days of the receipt of the appeal. The VPHC shall notify the parties of the time and the place of the hearing at least 21 calendar days prior to such hearing. Each party at the hearing shall have the right to be represented by a person of the party's own choice, either an attorney or non-attorney. This representative may serve as the party's spokesperson or only as an advisor to the party if the party is his or her own spokesperson. If the representative is the spokesperson, then the party may not also be a spokesperson; there may be only one spokesperson per party. Whether a party will be accompanied by a representative, the representative's name and whether he or she is an attorney, and whether the representative will serve as the party's spokesperson must be disclosed to the VPHC in writing no less than 10 calendar days in advance of the hearing. The representatives may not be witnesses at the hearing. If the Appellant chooses to have another K-State employee serve as his or her representative, that person is required to use approved leave to attend the hearing.
Continuances will be considered by and may be granted by the VPHC in consultation with the Appeals Board chair if received no later than 14 calendar days before the date of the hearing. Requests for continuance must be in writing to the VPHC office and state the reason for the request and show that the opposing party or his or her representative has been notified and whether the opposing party supports a continuance. The request must also contain alternative dates on which the requesting party is available for the hearing. Requests may be submitted by fax at 785-532-6095.
The VPHC shall make reasonable efforts to schedule a hearing within the time frames described in these guidelines. Reasonable efforts should be made to schedule the hearing during regular working hours at a convenient time for the parties and the members of the Appeals Board panel.
Parties involved in the hearing will also have the opportunity to indicate whether an Appeals Board panel member should be precluded from a particular hearing based on concerns about impartiality. The objecting party will have five calendar days from notice of Appeals Board panel appointment to notify the VPHC office of those concerns. The VPHC office, in consultation with the Appeals Board chair, will determine whether an alternate should be appointed.
Each party must provide in writing to the VPHC a statement of facts relevant to the matter, a list of all witnesses who are expected to testify, and a brief written statement of the anticipated testimony of each witness, showing the relevancy of the testimony, a list of identified exhibits and the exhibits themselves. All statements of facts, witness lists and exhibit lists, exhibits, information regarding spokepersons and representatives, and the manner in which the party would like to receive the opposing parties' information and materials (e.g., by U.S. mail, campus delivery, or in-person pick up) must be sent by the party such that they are received in the VPHC office at least 10 calendar days in advance of the hearing. The appellant's exhibits shall be marked "Appellant's Exhibit 1", "Appellant's Exhibit 2", etc. The respondent's exhibits shall be marked "Respondent's Exhibit A", "Respondent's Exhibit B", etc. Such statement of facts, witness lists, exhibit lists and exhibits are to be bound or stapled, paginated and shall include an index. Each party must provide to the VPHC one original and one copy for the opposing party, and the VPHC office shall promptly provide each party with the opposing party's information and materials in the manner requested. The VPHC also reproduces the necessary copies for the panel members and chair. Any documents not timely provided in proper format to the VPHC will not be sent to or considered by the panel. If no documentation is submitted by the Appellant to the VPHC by the deadline, the appeal will be deemed withdrawn and the hearing will be cancelled.
When witness lists have been provided to the VPHC office by the parties to the hearing, the VPHC office will send an advisory letter to the University witnesses with a copy to their supervisors and department heads. The letter will advise the recipients that the University supports efforts to accommodate the availability of witnesses for a hearing before the Appeals Board. The letter will also clarify that witnesses are expected to participate in the hearing, that they must request time away from normal duties for the hearing from their departments in advance in accordance with normal notice procedures, and that the time to participate in the hearing is considered as "work time." The letter will advise that witnesses will not be subjected to any form of intimidation or retaliation by any party or other University employee for their participation in the hearing; that any attempts of intimidation or retaliation should be reported to the VPHC office; that any complaint alleging intimidation or retaliation will be appropriately investigated; and that appropriate disciplinary action will be taken if intimidation or retaliation is determined to have occurred.
Non-party witnesses will be sequestered during the hearing.
All parties who testify at the hearing will be asked to swear or affirm as to the truthfulness of their statements before beginning their testimonies. A notary public will administer the oath to the witnesses.
The evidentiary phase of the hearing will be open unless the appellant requests it to be closed. After the evidentiary phase of the hearing, the Appeals Board panel will adjourn to a closed session to deliberate on the personnel matter of disciplinary action against the employee.
At the hearing, the burden of proof shall be upon the employee to establish that the Director of Employee Relations or his/her designee did not act reasonably in suspending without pay, demoting or dismissing the employee, which means that the employee must prove by a preponderance of the evidence that the disciplinary action taken was arbitrary, capricious, unreasonable, or without factual basis.
All hearings of the Appeals Board panel shall have a court reporter. Transcripts may be made of the contents of court reporting at the sole expense of the requesting party or by other agreement of the parties. All transcripts constitute part of the record of the hearing and shall be maintained by the VPHC office.
The chair of the Appeals Board panel has authority to conduct the hearing, and such authority shall include, but not be limited to, setting reasonable time limits for the presentation and cross examination of witnesses, determining testimony relevance, and determining admissibility of any documents. If a party presents documents for consideration after the stated deadlines for submission, and the opposing party objects to the admission of those documents, the chair may need to call a recess or reschedule the hearing if the chair determines that the documents are necessary to the hearing, timely production was not possible, and the opposing party would be prejudiced by the admission of such documents without being given additional time.
Each party to the appeal shall have an equal opportunity to present its case to the Appeals Board panel. Each party may present a five-minute opening statement at the beginning of the hearing before calling witnesses for testimony. The respondent shall present his or her case first, calling witnesses. The appellant may cross examine each witness after his/her testimony, with the respondent having the opportunity for redirect. The appellant shall present his or her case, calling witnesses for testimony. The respondent may cross examine each witness after his/her testimony, with the appellant having the opportunity for redirect. The respondent and the appellant may each present a 10-minute closing argument. The Appeals Board panel may question any party or witness. At the close of the evidentiary phase, the panel will adjourn into a closed session to deliberate and make findings and a recommendation.
After deliberation in the closed session and when the hearing is reconvened with all parties having the opportunity to be present, the chair will solicit a motion and second to recommend that the VPHC uphold, modify or reverse the disciplinary action and recommend any other action it deems appropriate. The Appeals Board panel will announce their vote in public. The vote will be determined by a majority. The Appeals Board panel will make every effort to render a decision on its recommendation at that time. If the Appeals Board panel cannot reach a decision because it has to deliberate for a greater length of time than available at the hearing, the Appeals Board panel will return to the hearing room and announce that more deliberation time is needed and that the findings of fact, the vote, and recommended determination will be sent by mail to the parties.
The Appeals Board panel shall submit to the VPHC its written findings of fact and recommended determination within 15 calendar days from the date on which the hearing was conducted. However, the chair of the Appeals Board panel may extend this time limit for good cause. The Appeals Board panel will make findings based on the information presented by the parties at the hearing and recommend in writing to the VPHC whether the action to suspend without pay, demote or dismiss the employee was reasonable and should be upheld, modified or overturned. The written recommendations must be supported by statements of factual conclusions based on the application of University rules regarding disciplinary process for university support staff. The written findings of fact and recommended determination will include the names of the committee members making and seconding the motion, and the members' votes on the matter resulting in the findings and recommended determination.
After review of the recommendations, the VPHC will provide a written decision to both parties and their attorneys of record, if any, within 15 calendar days of receiving the Appeals Board panel's written recommendation. The VPHC may take into account any relevant evidence to which the appellant has had the opportunity to respond. If the VPHC, based on his/her understanding of the matter or other relevant factors, does not follow the recommendations of the Appeals Board panel, the VPHC will meet with the Appeals Board panel to discuss his/her decision. The VPHC's decision is the university's final decision.
The VPHC office will provide staffing for the Appeals Board and Appeals Board panels. Those duties will include: maintaining the appeal files, making arrangements for a court reporter, counsel for the board, establishing deadline dates for receipt of witness lists and exhibits, copying and distribution of witness lists and exhibits, scheduling of all meetings and hearings, facilitating the hearing, etc.
For USS employees who have been found in violation of the University's anti-discrimination policy (PPM Chapter 3010), when the sanction includes suspension without pay, demotion or dismissal, the USS Appeals Board evaluates an appeal based upon the same standards and procedures required of Appeal Administrators under PPM Chapter 3010, makes a written recommendation to the Vice President for Human Capital Services, and the Vice President for Human Capital Services makes the final decision.
The appeal does not involve a new investigation or hearing by the USS Appeals Board. The appeal may only decide, based upon the written information presented, whether the Deciding Administrator's basis for imposing sanctions, and/or the sanctions themselves, were "arbitrary and capricious." This means that there must be no reasonable basis, under circumstances presented, to uphold the sanctions imposed by the Deciding Administrator. The appeal must defer to the ART for all credibility decisions (e.g., who is telling the truth). A Deciding Administrator who follows the ART's recommended sanction will be presumed not to have acted arbitrarily or capriciously, unless conclusively demonstrated otherwise.
For further information, see PPM Chapter 3010.
These appeal procedures are available only to University Support Staff with permanent status. They are not available to USS employees in probationary or temporary status or to members of the unclassified professional or academic staff or faculty.
Questions regarding this policy should be directed to the Vice President for Human Capital Services, 785-532-6277.