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Part 4. Personnel Policies

Section IV. Performance/Evaluation/Termination

G. Financial Exigency Procedures - All Employees (Updated 2/03)

1. General

The Board recognizes that in order to discharge its responsibilities for the University under its governance, it may become necessary to curtail, modify, or eliminate units, subunits, departments, programs, courses, or functions due to unfavorable economic conditions. The Board further recognizes that it must dedicate its resources to the achievement of the purposes and goals of the University.

The realities of the legislative appropriation process, the state revenue collection process, the possibility of budget holdbacks via executive order and the subsequent analysis needed before the Board declares a financial exigency may allow little time for official notice of a declaration of a financial exigency and may require that the decision to declare a financial exigency be based on estimated revenues, rather than on actual revenues. The Board must take action by written resolution setting forth the basis for its decision to declare a financial exigency, after notice and hearing, at a regular or special meeting of the Board.

Subsection N of the Board Governing Policies and Procedures, hereafter "Board Policy," is designed to authorize responses to a declared financial exigency including: (1) the layoff of nonclassified contract employees, tenured faculty, nontenured faculty, and classified employees during the term of their contract of employment; (2) employment actions other than layoffs that are designed to reduce budgetary expenditures; (3) the closure, relocation, or discontinuance of programs, units, or activities; or (4) any combination thereof.

Subsection N of Board Policy does not apply to the organization or reorganization of the University under the governance of the Board, nor does it limit the authority delegated by the Board to the President and his or her officers to organize and reorganize the University. Organizational structure, duty assignments, FTE count, place of work, shift placement, salaries, work hours, benefit determination and reductions in force and all similar and related work place decisions are the prerogative of the President and his or her officers, subject to the reserved authority of the Board where applicable. In addition, Subsection N is not applicable to the following situations:

a. When a reduction in force occurs pursuant to, and for those employees subject to, the State Board for Professional-Technical Education's administrative rules governing post-secondary reduction or termination (IDAPA 55.01.02).

b. When a reduction in force occurs where the reductions are made via the nonrenewal process for nonclassified contract staff and nontenured faculty.

c. When a reduction in force occurs pursuant to Board policies (Section III.G) for program consolidation, relocation, or discontinuance not resulting from financial exigency. Program closure, relocation, reduction, or discontinuance pursuant to Section III.G shall not be implemented utilizing any policy or procedure in Section II.N of Board Policy.

d. When a reduction in force affects State of Idaho classified employees using the procedures of the State Division of Human Resources.

e. When a reduction in force affects nonclassified at-will employees.

2. Definition

As used here, “financial exigency” means a demonstrably bona fide financial crisis which adversely affects the University as a whole, or one (1) or more programs, or other distinct units. A financial exigency exists only upon Board declaration and the responsibility and authority to make such a declaration rests solely with the Board.

3. Response by the University to a Declared Financial Exigency

a. After active consultation with employees, including faculty, professional staffs, and classified personnel, the President must prepare a plan (the "Plan") in response to the declaration of financial exigency. When developing this Plan, consideration must be given to the necessity and manner of reducing the employment force, the appropriate units or subunits to be affected, and the criteria for identifying the employees who are affected by the Plan. Once completed, the Plan must be approved by the Board. Provided, however, that implementation of the Plan and notices required to be given in the Plan can begin prior to Board approval, which approval shall then also include ratification of such actions.

b. The University shall seek advice from a committee, which may include representatives of the administration, faculty, staff or students, on the state of the financial exigency and possible responses thereto.

c. Notwithstanding any other Board policy, order or rule, or the policies of the University, all categories of employees may be laid off as a result of a Board declared financial exigency. The process used to layoff employees must be done equitably (but not necessarily uniformly), in good faith, and in a systematic manner directly related to the financial exigency.

d. Employment Actions Other than Layoffs. In any situation where a layoff may be made under Subsection N of the Board Policy, an employment action other than a layoff (including but not limited to a salary reduction, a work hour reduction, a demotion, and/or administrative leave without pay) may also be instituted. Such employment action need not be uniformly applied, it need only meet the requirements of this topic 3 and topic 8 below. In determining how to implement employment actions other than a layoff, the institution shall use the same policies that apply to a financial exigency layoff. However, employees who are affected by employment actions other than layoff do not have layoff reinstatement rights.

e. Program Closure, Relocation, and Discontinuance. When the Plan for responding to a declared financial exigency includes the closure, relocation, or discontinuance of a program, such program closure, relocation, or discontinuance shall be subject only to the requirements of Subsection N of Board Policy and not to other Board Policy, including specifically, but not limited to, Section III.G, and its related guidelines. However, arrangements should be made for enrolled students to complete affected programs in a timely manner and with minimum interruptions.

f. A financial exigency layoff, employment actions other than a layoff, and program closure, relocation, or discontinuance resulting from financial exigency may occur in the following manner:

(1) By entire entity or across the entire University; or

(2) By subunit within the University, such as, but not limited to, a college, school, academic department, administrative department, division, office, bureau, discipline, or specialty within a discipline, and such actions may also differ between subunits of the University; or

(3) By any combination of the aforementioned.

4. Classified Employees - When a financial exigency results in a layoff that affects classified employees, the following shall apply:

A layoff affecting employees subject to the Idaho classified personnel system will be made pursuant to the Rules of the Division of Human Resources.

5. At-Will Employees

Section II.N of Board Policy does not apply to the termination of at-will employees at the University. Such employees have no layoff rights and no right to notice, a hearing, or reinstatement following termination of employment.

6. Layoff Criteria - All nonclassified contract employees, nontenured faculty, and tenured faculty

a. In developing the Plan, the President must utilize as the first criterion the preservation of the overall quality and effectiveness of the programs of the University. Consequently, those employees who are deemed to be of key importance will be retained in preference to other employees, whatever their status, at the discretion of the President. Programs, for the purposes of a financial exigency layoff, include, but are not limited to, academic, non-instructional, maintenance, administrative, and other support areas. Other criteria that must be considered include, but are not limited to, tenure, rank, time in rank, length of service, field of specialization, maintenance of necessary programs or services, maintenance of affirmative action programs, and quality of service and work.

b. Notice of Financial Exigency Layoffs

(1) Form of Notice. The Board recognizes that any layoff may be a severe economic and personal loss to an employee. Therefore, and within the time frame provided in this policy, the President must give notice in writing to employees who are affected by a financial exigency layoff, which notice must include:

(a) The effective date of the layoff,

(b) A statement of the basis for the Board’s declaration of a financial exigency;

(c) A statement of the basis, procedures, and the criteria used to layoff an employee;

(d) Any opportunity for reconsideration or appeal, including access to appropriate documentation, and the issues that may and may not be considered; and

(e) The reinstatement rights of the employee.

(2) Time

The University will make every reasonable effort to give as much notice as practical, in light of the financial exigency, to each employee in advance of the effective date of the layoff. The Board requires the following minimum time for written notice of layoff:

(a) To nonclassified employees serving under a contract of employment for a fixed term and to nontenured faculty members occupying permanent faculty positions, not less than sixty (60) calendar days before the effective date of the layoff. Provided, however, that if under the express terms of the employee's contract the employment may be terminated on less notice, then the shorter notice provided in the contract shall apply.

(b) To tenured faculty members occupying permanent faculty positions, a notice of layoff as stipulated in (1) above with the effective date of the layoff being at the end of the first full semester (Fall or Spring) after the financial exigency is declared.

c. Hearing Procedures

(1) All employees of the University who receive a notice of a financial exigency layoff have the right to appear before the Board at the meeting of the Board where the Board will take action on the Plan. Such appearance shall be governed by the Board's policies, procedures and guidelines regarding testimony before the Board. In addition, categories of employees shall have hearing rights as set forth below in this subtopic c.

(2) Nontenured Faculty and Nonclassified Contract Employees' Hearing Rights

(a) In most instances, a layoff of nontenured faculty and nonclassified employees serving under a contract of employment for a fixed term may be accomplished by nonrenewal of the contract of employment rather than by layoff during the term of employment. Nonrenewal after a Board declared financial exigency does not require a hearing nor is the nonrenewal appealable within the University nor is it appealable to the Board.

(b) If a nontenured faculty member occupying a permanent faculty position or a nonclassified employee serving under a contract of employment for a fixed term is laid off during the term of employment due to a financial exigency, the faculty member or employee is entitled to the pre-layoff hearing procedures set forth in paragraph (4) below.

(3) Tenured Faculty Hearing Rights. All tenured faculty members occupying permanent faculty positions who are laid off due to a financial exigency are entitled to the pre-layoff hearing procedures set forth in paragraph (4) below.

(4) Financial Exigency Layoff Hearing Procedures

(a) Faculty members, excluding part-time and temporary faculty, who are recommended for layoff due to a financial exigency are entitled to a prompt and expeditious hearing that is fair and unbiased, but the hearing shall be informal. The application of evidentiary rules, questioning of witnesses (including cross-examination), rules concerning burden of proof, the participation of legal counsel, and similar and related attributes of more formal adjudication shall not be required. The final written recommendation of the hearing body must be conveyed to the President who will make a final decision. An employee may ask the President to reconsider the decision. Such a request must be filed in writing with the President within fifteen (15) days of the notice of the final decision of the University. The decision of the President in response to the reconsideration request is final except as modified by the Board pursuant to an appeal under Section II.M of Board Policy. Use of these hearing procedures does not delay the effective date of the layoff.

(b) Grounds to Contest - The employee may contest the layoff on the following grounds:

(i) Whether the agency, institution or school followed the appropriate policies and procedures and the terms of the Plan,

(ii) Whether the layoff was made for constitutionally impermissible reasons, or

(iii)Whether any other improper criteria were applied.

(c) Limitations Upon Review. The hearing body will not review the Board's decision to declare a financial exigency or the funding distribution among and within the departments and colleges of the University. The decision of the Board to declare a financial exigency is at the Board's sole discretion and may not be contested by any employee in any type of hearing or appeal procedure.

(d) Employees may request that the Board hear an appeal of the final decision of the President as provided in Board Policy Section II.M.2.b. Such a request does not delay the effective date of the layoff.

7. Reinstatement Rights

a. Tenured Faculty

In cases of a financial exigency layoff of tenured faculty members occupying permanent faculty positions, the position concerned may not be filled by replacement within a period of three (3) years from the effective date of the layoff unless the tenured faculty member has been offered a return to employment in that position and has not accepted the offer within thirty (30) calendar days after the offer was extended.

(1) Refusal of Reinstatement Offer. If an offer of reinstatement is not accepted, the tenured faculty member’s name may be deleted from the reinstatement list, and, if so deleted, the University and the Board have no further obligation to the faculty member.

(2) Benefits During Layoff. A tenured faculty member who is laid off may continue to contribute toward and receive the benefits of any applicable State insurance program if the laws, rules, regulations, policies, and procedures governing the administration of such insurance program so permit.

(3) Leave Credit. A tenured member of the faculty who has been laid off and who accepts reemployment at the University will resume tenure and the rank held at the time of layoff, be credited with any sick leave accrued as of the date of layoff, be paid a salary commensurate with the rank and length of previous service, and be credited with any annual leave (if applicable) which the employee has accrued as of the date of layoff, and for which the employee has not received payment.

b. Nontenured Faculty and Nonclassified Contract Employees (Nonfaculty)

In cases of a financial exigency layoff of nontenured faculty members occupying permanent faculty positions and nonclassified contract employees occupying permanent positions, the position concerned may not be filled by replacement within a period of one (l) year from the effective date of the layoff unless the employee has been offered a return to employment in that position and the employee has not accepted the offer within thirty (30) calendar days after the offer was extended.

(1) If an offer of reinstatement is not accepted, the employee’s name may be deleted from the reinstatement list, and, if so deleted, the University and the Board have no further obligation to the employee.

(2) A nontenured faculty member or a nonclassified contract employee who is laid off may continue to contribute toward and receive the benefits of any applicable State insurance program if the laws, rules, regulations, policies, and procedures governing the administration of such insurance program so permit.

(3) A nontenured member of the faculty who has been laid off and who accepts reemployment at the institution will resume the rank held at the time of layoff, be credited with any sick leave accrued as of the date of layoff, be paid a salary commensurate with the rank and length of previous service, and will be credited with any annual leave (if applicable) which the employee had accrued as of the date of layoff and for which the employee has not received payment.

(4) A nonclassified contract employee who has been laid off and who accepts reemployment at the institution will be credited with any sick leave the employee had accrued as of the date of layoff, paid a salary commensurate with the length of previous service, and credited with any annual leave which the employee had accrued as of the date of layoff and for which the employee has not received payment.

8. Employment Actions Other than a Layoff. The implementation of personnel actions other than a layoff shall follow the requirements of this topic 8.

a. If the Plan for addressing the financial exigency includes employment actions other than, or in addition to, a layoff, the employees affected by such actions shall be entitled solely to such procedures as are set forth in this topic and those that may be set forth in the Plan, if any. Such procedures must include at least thirty (30) days written notice prior to the effective date of the action and an informal opportunity for the employee to be heard. The notice must include the effective date of the employment action; a statement of the basis for the Board's action to declare a financial exigency; a statement of the basis for the employment action and a description of the process for the opportunity to be heard. Such process must be prompt, expeditious and fair, but shall be informal. The application of evidentiary rules, questioning of witnesses (including cross-examination), rules concerning burden of proof, the participation of legal counsel, and similar and related attributes of more formal adjudication shall not be required. The employee may contest the action based on whether the University followed the appropriate policies and procedures and the terms of the Plan; whether the action was made for constitutionally impermissible reasons; or whether any other improper criteria were applied. The hearing body will not review the Board's decision to declare a financial exigency or the funding distribution among and within the departments and colleges of the University. The decision of the Board to declare a financial exigency is at the Board's sole discretion, and may not be contested by any employee in any type of hearing or appeal procedure. The written recommendation of the hearing body must be conveyed to the President who shall make a final decision. There is no right of appeal to the Board.

b. There are no reinstatement rights with respect to employment actions other than a layoff. Remedies, if any, to which employees are entitled shall be set forth in the Plan.

9. Financial Exigency Program Closure, Relocation, or Discontinuance

a. Faculty or staff being laid off as a result of a program closure, relocation, or discontinuance pursuant to a financial exigency Plan shall be entitled to the same procedural rights as any other layoff pursuant to a financial exigency. Provided, however, the reinstatement rights only exist if the program is reinstated by the University, not merely if the position is filled.

b. Students enrolled in a program that is closed, relocated, or discontinued should be given notice of the closure as soon as is practical. Notwithstanding any other provision of State Board of Education policy, University policy, or University catalog statements to the contrary, arrangements should be made for enrolled students to complete affected programs in a timely manner and with minimum interruptions. When there is a similar program within the institutions governed by the Board, an affected student will be provided with information on transferring to that program, although admission to any such program is contingent upon the availability of a position and the student's meeting any applicable admission requirements. If there is no similar program available within the institutions governed by the Board or the student is not able to gain admission to a similar program, the University will make reasonable efforts to place the student in a related or comparable program within the University. If none is available, the University will make reasonable efforts to assist the student in locating to another program at the University or elsewhere for which he or she is qualified.

10. Hearing Bodies

Upon declaration of a financial exigency by the State Board of Education, the President shall:

a. Initiate the process for establishing two (2) hearing bodies, one (1) for each of the following groups: (1) academic and College of Technology faculty (hereafter "faculty"), and (2) nonclassified contract employees (nonfaculty). Each hearing body shall consist of seven (7) persons chosen as described below:

(1) Faculty

(a) The Executive Committee of the Faculty Senate will appoint two (2) tenured members to the hearing body, plus one (l) tenured alternate. One (1) of these faculty members designated by the Executive Committee will serve as the chair of the hearing body.

(b) The President will appoint two (2) members of the University Faculty.

(c) The four (4) appointed members will appoint three (3) faculty at-large, at least two (2) of whom must be nontenured.

(d) The hearing body chair is responsible for convening the hearing body within seven (7) calendar days after the appeal has been filed with the President, providing the hearing body with all available factual information pertinent to the case, and seeing that the function of the hearing body is carried out. During the appeals hearing the chair shall be the presiding officer.

(e) Proposed members of the hearing body may be excluded for cause and the appellant and the President may each exercise the right of peremptory challenge for one (1) member of the hearing body. Vacancies, however created, shall be filled by the original appointing authority as described above. A challenger may make recommendations regarding areas from which the replacements are chosen.

(2) Nonclassified Contract Employees (Nonfaculty)

(a) The Executive Board of the Council of Professional Employees (COPE) shall appoint four (4) COPE members [plus four (4) alternates] to serve on the nonclassified contract employees hearing body. One (1) of these four (4) members, elected by the three (3) others, shall serve as chair.

(b) The President will appoint one (1) additional nonclassified contract member (nonfaculty).

(c) The five (5) above members will appoint two (2) additional nonclassified contract members at-large (nonfaculty).

(d) The hearing body chair is responsible for convening the hearing body within seven (7) calendar days after the appeal has been filed with the President, providing the hearing body with all available factual information pertinent to the case, and seeing that the function of the hearing body is carried out. During the appeals hearing, the chair shall be the presiding officer.

(e) Proposed members of the hearing body may be excluded for cause and the appellant and the President may each exercise the right of peremptory challenge for one (1) member of the hearing body. Vacancies, however created, shall be filled by the original appointing authority as described above. The challenger may make recommendations regarding areas from which replacements are chosen.

(3) Limitations

(a) No person shall serve on a hearing body if he or she has received notice of layoff as a result of a financial exigency, has received notice of termination or nonrenewal for any other reason, or has any appeal or litigation pending against the University. Nor shall any person be chosen to serve who has participated in any decision to layoff the appellant for reasons of a financial exigency.

(b) Any member of the hearing body who has any special relationship to any particular appellant or to the administration which might reasonably be said to raise a claim of conflict of interest shall report the facts to the parties involved.

(c) The chair of the hearing body shall disqualify members based upon the limitations noted above. New member(s) will be selected following the method of constituting the hearing body described above.

11. Hearing Scope and Grounds; Time for Appeals

a. The hearing process is not a judicial proceeding and shall be informal. The scope of any hearing shall be limited to the following grounds:

(1) Whether the agency, institution or school followed the appropriate policies and procedures and the terms of the Plan,

(2) Whether the layoff was made for constitutionally impermissible reasons, or

(3) Whether any other improper criteria were applied.

b. Limitations Upon Review. The hearing body will not review the Board's decision to declare a financial exigency or the funding distribution among and within the departments and colleges of the University. The decision of the Board to declare a financial exigency is at the Board's sole discretion and may not be contested by any employee in any type of administrative hearing or appeal procedure.

c. Any nonclassified contract employee who has received notice of layoff under a declaration of financial exigency must file a formal appeal within fifteen (15) calendar days of certified receipt of such notice, by transmitting the appeal in writing to the President. The appeals document will then be transmitted to the appropriate hearing body. Copies of all relevant correspondence should accompany the appeal. In the written request for a hearing, the employee shall set down the grounds upon which the layoff or nonrenewal is alleged to be improper.

12. Hearing Procedures

The procedural requirements of formal adjudication shall not be required as proceedings shall be informal; however, the following minimal standards of procedure shall be adhered to:

a. Tape recordings shall be made of each hearing session and upon written request and payment of the cost of duplication, an appellant may obtain duplicate copies.

b. Summary notes of the hearing shall be kept by the hearing body chair or an appointee of the chair.

c. The written appeal and subsequent information presented by the appellant shall be made a part of the summary notes.

d. An appellant shall be afforded the opportunity to appear before the hearing body and discuss the issues contained in the written appeal.

e. Witnesses may be asked to appear before the hearing body by the appellant, the administration, the hearing body chair, or presiding officer and asked to give testimony which is material and directly relevant to the standard of review. Each party or the hearing body may ask questions of any witness.

f. An appellant may have an advisor of his/her choice who may, in an opening statement before the hearing body, present the issues contained in the written appeal filed by the appellant.

g. The hearing body and the appellant shall be afforded access to appropriate documentation which was used in reaching a layoff decision under the appeal.

h. It shall be the responsibility of the appellant to present to the hearing body appropriate information to convince the hearing body that the layoff decision cannot be supported.

i. All votes taken during the appeals proceedings must be by written secret ballot to be kept on file for the record. The ballots shall be anonymous.

13. President's Decision

Within five (5) calendar days after the conclusion of the hearing, the hearing body shall forward to the President and the employee a report of its recommendation. The President shall render a decision on the appeal and within ten (10) calendar days after receiving that report, shall notify by Certified Mail the nonclassified employee and the chair of the hearing body of the final decision.

Employees may request that the Board hear an appeal of the final decision of the President as provided in Board Policy Section II.M.2.b and restated in topic 14 below. Such a request does not delay the effective date of the layoff.

14. Appeal to the Board

A nonclassified employee, including faculty, may elect to petition the Board to review any final personnel related decision of the President. Any written petition must be filed in the Office of the State Board of Education within fifteen (15) calendar days after the employee receives written notice of final action under the internal procedures of the University. The Board may agree to review the final action, setting out whatever procedure and conditions for review it deems appropriate, or it may choose not to review the final action. The fact that a written petition has been filed does not stay the effectiveness of the final decision nor does it grant a petition for review unless specifically provided by the Board. Board review is not a matter of right. An employee need not petition the Board for review in order to have exhausted administrative remedies for the purposes of judicial review.


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