NOT DESIGNATED FOR PUBLICATION
Nos. 129,090
129,091 129,092 129,094 129,095 129,096
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
EMPORIA STATE UNIVERSITY, Appellant,
v.
ROB CATLETT, et al.
Appellees.
MEMORANDUM OPINION
Appeal from Lyon County District Court; COURTNEY D. CRAVER, judge. Oral argument held July 21, 2026. Opinion filed September 4, 2026. Affirmed.
Clayton J. Kaiser, of Foulston Siefkin LLP, of Wichita, and Eric Turner, of the same firm, of Overland Park, for appellant.
J. Phillip Gragson and Amanda S. Vogelsberg, of Henson, Hutton, Mudrick, Gragson & Vogelsberg, LLP, of Topeka, for appellees.
Before MALONE, P.J., HURST and COBLE, JJ.
PER CURIAM: In September 2022, Emporia State University (ESU) terminated the employment of 33 faculty and staff members under a COVID-based framework to allow ESU to handle financial pressures it was facing during the pandemic. Seven tenured professors separately appealed their terminations to the Kansas Office of Administrative
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Hearings (OAH). After reviewing the record and hearing arguments, an administrative law judge (ALJ) reversed each termination, finding in each case that ESU's actions were substantially inconsistent with the framework's requirements because ESU did not provide sufficient notice to the professors of the reasons the university was firing them. ESU sought judicial review in Lyon County District Court, which affirmed the orders reversing the professors' terminations under the same rationale as the ALJs'—finding the notices of termination were deficient and noncompliant with the framework.
ESU appeals and claims that (1) the ALJs and district court misinterpreted the procedural requirements of the COVID policy and framework by considering sufficiency of the notice as a basis for reversing the termination decisions; (2) the professors waived any notice-based arguments by appealing their terminations; and (3) alternatively, the professors' notices of termination provided sufficient notice. After thoroughly reviewing the record and the parties' arguments, we affirm the district court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Kansas Board of Regents (Board) is the policy-making, governing body tasked with overseeing the institutional operations, budgets, employment, and personnel of six Kansas regent universities, including ESU. Kan. Const. art. 6, § 2; K.S.A. 76- 779(a), (e); K.S.A. 74-32,407(j). Most employees of the regent universities, such as ESU, "serve at the pleasure of the chief executive officer." K.S.A. 76-715. But tenured faculty—who have received a permanent academic appointment following an arduous process of evaluation over a six-year period—are granted additional protections and "may only be terminated for adequate cause, except in the case of program or unit discontinuance or under extraordinary circumstances because of financial exigency." See Board Policy Manual, Ch. II(C)(2)(b)(vii) (rev. 3/12/2025).
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On January 20, 2021, the Board proposed and approved a temporary policy (COVID Policy) modifying its policy on suspensions, dismissals, and terminations of tenured faculty members. Effectively, the COVID Policy granted universities the authority to more easily fire tenured faculty to ease institutional financial constraints. While the Board's tenure policy had provided that tenured faculty could only be terminated "for reasons of significant reduction in or elimination of the funding source supporting the position, program discontinuance, financial exigency, or for just cause related to the performance of or failure to perform the individual's duties" or "upon conviction of any felony" or even being "charged with a felony offense," the Board expanded potential grounds for termination to address COVID-related pressures on the regent universities. The COVID Policy provided:
"ii. In light of the extreme financial pressures placed on the state universities due to the COVID-19 pandemic, decreased program and university enrollment, and state fiscal issues, effective immediately through December 31, 2022 and notwithstanding any other Board or institutional policy, any state university employee, including a tenured faculty member, may be suspended, dismissed, or terminated from employment by their respective university. Such terminations, suspensions, or dismissals shall follow the procedure set forth below. Declaration of financial exigency and the processes associated with declaration of financial exigency shall not be a prerequisite to any suspension, dismissal, or termination authorized by this provision, and no existing university policy hearing procedures shall apply to such decisions.
"The chief executive officer of any state university, before making any suspensions, dismissals or terminations under this provision and within 45 days of the effective date of this provision, shall present to the Board for approval a framework for the university's decision-making under this provision. Once approved, that framework shall be used for any suspension, dismissal, or termination under this provision. Frameworks for decision-making shall be determined by each state university's chief executive officer and may be based on factors such as, but not limited to, performance evaluations, teaching and research productivity, low service productivity, low enrollment, cost of operations, or reduction in revenues for specific departments or schools.
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(1) The university chief executive officer shall provide no less than 30 days'
written notice of the suspension, dismissal, or termination to the affected employee, including the reasons for the action.
(2) Any employee given notice of a suspension, dismissal, or termination that expressly invokes the authorization of this provision may submit an appeal of the action of the university chief executive officer, through the Board of Regents office as provided below, to the Office of Administrative Hearings. Suspension, dismissal, or termination not invoking this policy shall have solely those appeal rights provided by existing university policy or other applicable existing procedures.
(3) The employee must submit the appeal to the Board office within 30 days of receiving notice of the employment action. The initial submission must include a copy of the notice of the action being appealed and a written statement, including any relevant supporting evidence or documentation, setting forth the reasons the employee believes the decision to suspend, dismiss, or terminate the employee (a) is substantially inconsistent with the university's decision-making framework approved by the Board, (b) was the result of unlawful bias or discrimination; or (c) was otherwise unreasonable, arbitrary or capricious. These shall be the only grounds for reversing the state university chief executive officer's decision. The employee shall provide a copy of the appeal and supporting evidence and documentation to the university's chief executive officer at the time the appeal is submitted.
(4) The university chief executive officer shall have 30 days from receipt to respond in writing to the appeal, including any supporting evidence or documentation, and shall provide a copy of the response and any supporting evidence and documentation to the employee at the time the response is submitted. This 30-day period may be extended for good cause as determined by the Board President and Chief Executive Officer.
(5) Within 10 days of receiving the university chief executive officer's response, the Board office shall refer the appeal to the Office of Administrative Hearings, which shall provide a hearing and decide the case based on the standards stated in this policy and in the university's Board-approved framework. . . .
(6) The burden of proof in any appeal shall be on the employee. There shall be no right of discovery. The review shall be based on the written submissions, and the hearing shall allow oral presentation to the administrative hearing officer by the employee and the university, each of whom may be represented by counsel.
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(7) Decisions of the administrative hearing officer shall be final and are not subject to further administrative review by any officer or committee of the university or by the Board of Regents.
(8) An appeal under this policy will not stay the effective date of the suspension, dismissal, or termination. Employees who prevail in their appeal under this policy shall be entitled to reinstatement, back pay, and restoration of other lost benefits." (Emphases added.)
Under the COVID Policy, before using the pandemic as a reason to fire tenured faculty, ESU needed to submit a decision-making framework under which any terminations would be based. So ESU formulated a "Framework for Workforce Management (Framework)," which the Board approved on September 14, 2022. In the Framework, ESU adopted much of the language from the Board's COVID Policy, particularly in the section setting forth the procedure to be followed when making any termination decisions and the procedural rights of faculty members to appeal. But the Framework included an additional section setting forth nine nonexclusive factors that ESU would consider in making any termination decisions. The following factors and considerations were listed in the Framework:
"A decision to suspend, dismiss, or terminate any university employee shall be based on factors such as, but not limited to:
• Low enrollment. • Cost of operations. • Reduction in revenues for specific departments or schools. • Current or future market considerations as to the need for a program or department.
• Restructuring of a program, department, or school as determined to be necessary by the university.
• Realignment of resources. • Performance evaluations. • Teaching and research productivity.
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• Low service productivity.
"A decision for action must be made in consideration of the following:
• Relevant accreditation requirements for the program, school, or college. • Course availability to students in order to complete degree requirements. Course availability means students can take necessary courses either at ESU or through another university or community college in Kansas."
Relevant to this appeal, the 30-day notice provision of the Framework largely tracked the language used in the COVID Policy, but it included an additional sentence explaining the required substance of the notice:
"Notice. The President shall provide no less than 30 days' written notice of suspension, dismissal, or termination to the affected employee. This notice shall include a statement that this action is being taken pursuant to this policy, the reasons for the action being taken, the effective date of the action, and shall also include any considerations to be provided by the University to the affected employee (such as severance pay, payouts, retirement options, etc.)." (Emphasis added.)
The procedural steps for a professor to take to appeal a termination decision mirrored those provided in the COVID Policy. Beyond the timelines for filing an appeal from a termination decision with the OAH, the procedural section provided that a professor's appeal needed to include "a written statement with any relevant supporting evidence" describing why the professor believes the decision for the action: "(a) is substantially inconsistent with the university's decision-making framework approved by the Board; (b) was the result of unlawful bias or discrimination; or (c) was otherwise unreasonable, arbitrary or capricious." And the Framework also specified: "These are the only grounds for reversing the President's decision."
On September 15, 2022, the day after receiving the Board's approval of the Framework, ESU terminated the employment of Robert Catlett, Associate Professor of
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Mathematics and Economics; Michael Behrens, Associate Professor of English/Modern Languages/Journalism; Amanda Miracle, Associate Professor of Social Sciences/Sociology/Criminology; Daniel Colson, Associate Professor of English/Modern Languages/Journalism; Lynnette Sievert, Professor of Biological Sciences; Charles Emmer, Professor of Social Sciences/Sociology/Criminology; and Michael Morales, Associate Professor of Physical Sciences (the Professors). That same day, ESU also fired 26 other faculty and staff members under the Framework and COVID Policy, but none of those terminations are included in this appeal.
The Professors were notified of their terminations via "notification letter[s]." The letters, which were nearly identical, all stated that ESU made the termination decision "due to extreme financial pressures accelerated by COVID-19 pandemic, decreased program and university enrollment, continuing and ongoing increases in the cost of operations across campus, and substantive changes in the educational marketplace." Each of the letters listed some combination of the nine factors set forth in the Framework that ESU had relied on in making each termination decision. Though set forth in different orders, in each of the Professors' letters ESU listed all nine of the potential factors upon which a termination decision could be based under the Framework.
All seven of the Professors exercised their right to administratively appeal their terminations, requesting hearings before the OAH. While the Professors' written statements each contained a variety of reasons they believed their terminations should be overturned, they all cited ESU's failure to explain the particular reasons for their termination as grounds for their appeals. ESU filed responses to each of the Professors' appeals. In its responses, ESU contended that the notices of termination that it provided the Professors were substantially compliant with the requirements of the Framework. And ESU largely took the position that its decision to fire the Professors was based off its need for budget cuts to navigate revenue shortfalls in the face of rising expenses, was not the result of discrimination or bias, and was not arbitrary or unreasonable.
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The Professors' appeals were handled by three different ALJs: Professors Catlett, Behrens, and Miracle's appeals were decided by ALJ Jennifer Barton; Professors Colson and Sievert's appeals were decided by ALJ Sandra Sharon; Professors Emmer and Morales' appeals were decided by ALJ James Ward. All seven of the appeals were decided in the Professors' favor, reversing ESU's termination decisions on grounds of the insufficiency of the notice ESU provided. Each of the orders concluded that ESU's action to terminate the Professors' employment was substantially inconsistent with the ESU Framework approved by the Board.
The orders all found that ESU—by broadly listing nine factors and considerations its decisions were based on—had effectively failed to state the reasons for its termination decisions. For example, in Professor Catlett's case, the ALJ noted that "[b]ecause of this open-ended language, it is impossible to determine which of these 'factors' and 'considerations' were the actual reason or reasons for Mr. Catlett's termination." The order also explained that the use of the qualifiers "but not limited to" and "may include" made it "reasonable to believe that none of the listed items applied to Mr. Catlett and that other, yet undisclosed reasons existed for his termination." Catlett's order highlighted that "the most important consequence of ESU's omission is that it undermines the already limited appeal rights reserved for the employee, almost to the point of nonexistence." The order reasoned that the omission of an explanation of the rationale behind the termination decision was "significant and substantial in light of its impact on the process as well as its potential impact on the employee" and thus was substantially inconsistent with the Framework. The other ALJ orders cited similar logic to reach the same conclusion.
ESU appealed each of the ALJ decisions to the Lyon County District Court under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. ESU argued that relief was warranted on five grounds: (1) the ALJ exceeded its jurisdiction, (2) the ALJ failed to decide an issue requiring resolution, (3) the ALJ erroneously interpreted the applicable law, (4) the ALJ engaged in an unlawful procedure, and (5) the ALJ's factual
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determination was unsupported by any evidence, much less substantial evidence. Alternatively, ESU maintained that no evidence supported the ALJs' conclusions that it had failed to provide sufficient explanation of its decisions in the notification letters.
Although the cases were not consolidated, the same district judge, Judge Courtney Boehm (now Craver), presided over each of the appeals. After receiving briefing from the parties and holding hearings, the district court issued seven nearly identical orders. The orders discussed the procedural history of the case, including the adoption of the Framework and the appeals process through the OAH, and the applicable standards of review under the KJRA. Turning to its analysis of the ALJs' rulings, the district court concluded:
"ESU did not provide [the Professors] with specific or explicit reasons for [their] termination[s]. Instead the Notice[s] issued to [the Professors were] vague and relied on broad, non-committal language regarding the factors considered in [their] termination[s]. This ambiguous phrasing fails to identify which factors specifically applied to [the Professors] or what conduct led to [their] dismissal[s].
"Without clear allegations, [the Professors were] deprived of the ability to gather relevant evidence, prepare documentation, or address the specific grounds for [their] termination[s]. The absence of particularized notice renders [their] ability to challenge the termination meaningless, as [they] cannot reasonably respond without knowing what [they are] defending against.
.... "The Notice provided to [the Professors] failed to specify why [they], as opposed to another employee, [were] selected for termination. Without clear notice of the reasons for termination, [the Professors] could not reasonably be expected to present evidence or documentation in [their] defense. The lack of specificity in the Notice rendered [their] opportunity to contest the termination meaningless. This insufficient Notice, therefore, was substantially inconsistent with the ESU decision-making framework as approved by KBOR."
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Thus, the district court denied ESU relief in all seven cases. ESU timely appealed each of the district court's orders. ESU moved to consolidate the cases for appeal, which this court granted. Subsequently, ESU voluntarily dismissed its appeal of the district court's decision in Professor Colson's case.
ANALYSIS
On appeal, ESU claims that (1) the ALJs and district court misinterpreted the procedural requirements of the COVID Policy and Framework by considering sufficiency of the notice as a basis for reversing the termination decisions; (2) the Professors waived any notice-based arguments by appealing their terminations; and (3) alternatively, the notices of termination provided sufficient notice. We will address each claim in turn.
Did the ALJs and district court err in interpreting the COVID Policy and Framework?
ESU raises several related challenges to the rulings of the ALJs and the district court based on the provisions of the COVID Policy and Framework, including: (1) the ALJs and the district court misinterpreted the COVID Policy and Framework to include the sufficiency of the notice as a ground for reversal of a termination decision; (2) the ALJs exceeded their jurisdiction by considering the content of the notices of termination, which was not within the scope of issues they could review; (3) the ALJs failed to follow the Framework's proscribed procedure of review; and (4) the ALJs failed to decide the ultimate issue in the Professors' appeals. All of ESU's arguments boil down to a singular premise: Neither the COVID Policy nor Framework permits a termination decision to be reversed based on the adequacy of the notice given to a Professor because any appeal could only examine the grounds of the decision itself.
The Professors maintain that the ALJs appropriately concluded that ESU's termination decisions were substantially inconsistent with the Framework because their
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notices of termination did not explain why they were being terminated, which effectively prevented them from exercising their rights to appeal under the Framework. They assert the ALJs properly construed the Framework and that the orders reversing their terminations are supported by substantial competent evidence.
The KJRA governs the procedure and scope of judicial review of a state administrative agency action. K.S.A. 77-601 et seq.; Board of Cherokee County Comm'rs v. Kansas Racing & Gaming Comm'n, 306 Kan. 298, 318, 393 P.3d 601 (2017). The KJRA only allows a court to grant judicial relief from an agency action for the reasons listed in K.S.A. 77-621(c). Hanson v. Kansas Corporation Comm'n, 313 Kan. 752, 761, 490 P.3d 1216 (2021). This court exercises the same statutorily limited review of the agency's action as the district court does, just as though the appeal had been made directly to the appellate court from the agency's decision. Board of Cherokee County Comm'rs, 306 Kan. at 318. In other words, this court will review the decisions made by the ALJs. And as the party bringing the appeal, ESU has the burden of establishing the invalidity of, or errors in, the ALJs' decisions. See K.S.A. 77-621(a)(1); Sierra Club v. Mosier, 305 Kan. 1090, 1100, 391 P.3d 667 (2017).
This court exercises unlimited review over ESU's principal argument that the ALJs misinterpreted the provisions of the COVID Policy and Framework. Hanson, 313 Kan. at 762-63 ("Judicial review of an agency's interpretation and application of the law is permitted under K.S.A. 77-621(c)(4) and is unlimited without deference to the agency's view."). ESU's additional arguments—that the ALJs acted beyond the scope of review (or outside their jurisdiction) provided in the Framework, failed to decide an issue requiring resolution, and engaged in an unlawful procedure—relate back to its core allegation that the ALJs misinterpreted the Framework. These issues, however framed, are subject to unlimited review by an appellate court. See 313 Kan. at 761 ("When resolving an issue seeking judicial relief under K.S.A. 77-621(c)(3) . . . this court exercises unlimited review."); In re River Rock Energy Company, 313 Kan. 936, 945, 492 P.3d 1157 (2021)
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("On issues alleging [an agency] failed to follow prescribed procedures to entitle relief under K.S.A. 77-621(c)(5), our review is unlimited because those questions necessarily involve interpretation of relevant statutory or regulatory procedures.").
As a starting point, it helps to set aside the areas on which the Professors and ESU agree. First, there is no dispute that the administrative appeals process provided under the COVID Policy and Framework were properly authorized, defined, and approved by the Board and ESU—that is, there is no question that the Board and ESU, with the Board's approval, had the authority to define the scope of an appeal from a termination decision as they did in the COVID Policy and Framework. Second, the parties agree that per the terms of the Framework, ESU needed to include "the reasons for the action being taken" in any notice of termination given to a fired professor. Finally, the parties concur that the COVID Policy and Framework provide the procedure and the limited scope of review for an employee's appeal from a termination decision.
The central question this court must decide is whether the Framework provides a basis for reversing the Professors' terminations on the grounds that the notices of termination they received were ineffectual—or, as the ALJ and district court concluded, were substantially inconsistent with the decision-making framework approved by the Board. In other words, did the ALJs incorrectly apply the Framework under K.S.A. 77- 621(c)(4) by relying on the notices of termination to find that ESU's termination decisions were substantially inconsistent with the Framework?
This court's review of ESU's challenge must start with the language of the Framework—which, although not a statute, the parties agree should be interpreted under the same principles. When engaging in statutory interpretation, this court looks to the plain language, giving common words their ordinary meanings. If the language is plain and unambiguous, this court will not speculate about the intent behind that clear text. But
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if the statutory language is ambiguous, this court can consult canons of construction to resolve the ambiguity. City of Shawnee v. Adem, 314 Kan. 12, 15, 494 P.3d 134 (2021).
The ALJs and district court concluded that ESU's termination decisions were substantially inconsistent with the university's decision-making Framework because the notices of termination sent to the Professors failed to specify why the individual professors had been selected for termination. The ALJs and the district court explained that the Professors could not have been expected to mount any defense or argument in their appeals due to ESU's lack of specificity in the notices of termination, and therefore the Professors' opportunity to contest their terminations under the procedure provided in the Framework was meaningless. In other words, the ALJ's and district court's reversal of the termination decisions focused almost entirely on the substance of the notice.
As noted above, the thrust of ESU's argument is that the ALJs misinterpreted the Framework's provisions by conflating the notice of the decision with the decision itself. ESU takes the position that the plain language of the COVID Policy and Framework only permits review of the termination decision and "should not be interpreted to include review of the 'notice' that ESU provided to affected faculty members regarding their employment 'decision.'" The Professors assert that the ALJs did not conflate the notice of the decision with the decision itself because without adequate notice of termination, ESU's decision to terminate the Professors could not be reviewed.
ESU makes two related arguments to support its claim that the ALJs could not base their decision on the sufficiency of the notices of termination. First, ESU contends that "notice" and "decision" are distinct terms, which the ALJs conflated in their rulings. Second, ESU argues that the clause limiting the grounds upon which a termination decision may be reversed applies only to the substance of the termination "decision"—not the "notice" of that decision. We again quote the Framework's key provisions addressing notice of termination and the limited scope of appeal from a termination decision:
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"1. Notice. The President shall provide no less than 30 days' written notice of suspension, dismissal, or termination to the affected employee. This notice shall include a statement that the action is being taken pursuant to this policy, the reasons for the action being taken, the effective date of the action, and shall also include any considerations to be provided by the University to the affected employee (such as severance pay, payouts, retirement options, etc.).
"2. Appeal. The employee may appeal the action taken pursuant to this policy through the Board of Regents office to the Office of Administrative Hearings. Any action taken that is not being taken pursuant to this policy shall have solely those appeal rights provided by existing university policy or other applicable procedures.
"3. Appeal, Time and Content of. The employee must submit an appeal to the Board office within 30 days of receiving notice of the action. The appeal must include a copy of notice of the action received by the employee and a written statement with any relevant supporting evidence describing why the employee believes that the decision for the action: (a) is substantially inconsistent with the university's decision-making framework approved by the Board; (b) was the result of unlawful bias or discrimination; or (c) was otherwise unreasonable, arbitrary or capricious. These are the only grounds for reversing the President's decision. The employee shall provide a copy of their appeal documents to the President at the same time they are submitted to the Board office." (Emphases added.)
Looking to the commonly understood meanings of "decision" and "notice," both parties cite definitions provided by Merriam-Webster. A "decision" is defined, in relevant part, as "the act or process of deciding"; "a determination arrived at after consideration"; "a judicial determination made after consideration of the facts or law of a case"; or "a written report of a determination or conclusion." Merriam-Webster Online Dictionary. "Notice" is defined as "warning or intimation of something"; "the announcement of a party's intention to quit an agreement or relation at a specified time"; "the condition of being warned or notified"; or "a written or printed announcement." Merriam-Webster Online Dictionary. While not cited by the parties, Black's Law Dictionary defines "notice" as "[l]egal notification required by law or agreement, or imparted by operation of law as a result of some fact . . . definite legal cognizance, actual or constructive" and "[a] written or printed announcement." Black's Law Dictionary 1274 (12th ed. 2024). Even without resorting to their dictionary definitions, the distinction between the two terms is
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fairly obvious: Decision means the actual conclusion or action that the university made, and (in the context of the Framework) notice means the announcement and explanation of the reasons for that decision.
Looking to the structure of paragraph three of the Framework, the sentence explicitly limiting the grounds for review immediately follows the sentence describing the two required materials that must be provided to the OAH in any appeal: (1) a copy of the notice and (2) a written statement explaining why the termination decision was wrong. ESU argues that of the two required materials that must be provided for an appeal under the Framework, only the substance of the decision can be considered as a grounds for reversal, not the notice. But we find that the Framework's language does not support this distinction. The core problem with ESU's limited interpretation of the Framework's scope of review is that it renders the notice requirement—which mandates that the notice shall include "the reasons for the action being taken"—meaningless.
ESU's reading of paragraph three of the Framework—that it only permits a reversal of a termination decision based on the substance of the decision, not a procedural deficiency in the notice given—omits the fact that the paragraph requires the submission of both the notice received and the Professors' written statement explaining why the decision was incorrect. Why must an appeal include a copy of the notice of termination if the contents of the notice was not an important consideration in the appeal? And how can an employee include a written statement explaining why the decision was incorrect if the notice provides insufficient grounds to support a decision? Limiting an appeal to the three stated grounds an employee believes the decision was incorrect presumes that the notice sufficiently included the reasons for the termination decision. When read in full, the paragraph provides the contents of the appeal—the notice the professor received and the written statement explaining why the decision was erroneous—and that sentence is then immediately followed by the restriction that these are the only grounds for reversal. A fair reading of the language that "[t]hese are the only grounds" for reversal suggests that
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the grounds include a problem with the notice as well as an error in the decision. When considering the entire structure of the Framework, which includes an explicit provision describing what a notice of termination must contain, we find that ESU's interpretation would render that provision empty—it would effectively be a procedural requirement with which ESU would have no need to comply and for which it would face no consequences if ignored.
The notice required under the Framework is a written communication from ESU advising the Professors that they have been terminated and explaining why that action had been taken. Because the Framework explicitly precludes any discovery, the notice served as the sole grounds from which the Professors could make any argument about whether the decision leading to their termination was inconsistent with the Framework, based on bias or discrimination, or otherwise unreasonable. Under the procedure outlined in the Framework, the notice plays a key role in the procedure—without a notice providing the reasons and rationale, the Professors would be left unable to mount any argument about the decision underlying their termination. A legitimate ground for reversing a termination decision is because the decision is substantially inconsistent with the university's decision-making framework. The decision-making framework includes a notice that explains the reasons for the action being taken. Thus, the ALJs could consider the insufficiency of the notice as a basis for reversing a termination decision.
In sum, under the administrative appeals process, the notice of termination was the sole mechanism by which the Professors were informed of the decisions impacting their livelihood and it was intended to give them the ability to exercise their right to seek review of that decision. To read the Framework as precluding any relief based on the university's failure to explain the reasons for its termination decision would effectively eliminate the notice provision entirely. The ALJs did not conflate the notice of the decision with the decision itself because without adequate notice of termination, ESU's decision to terminate the Professors could not be reviewed. Thus, the ALJs did not err by
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considering the sufficiency of the notice for each Professor as a basis for reversing the termination decision. We conclude the ALJs did not err in interpreting the Framework, did not exceed their jurisdiction or fail to follow the proscribed procedure, and did not fail to decide the ultimate issue in the Professors' appeals.
Did the Professors waive any notice-based argument by participating in the appeals process provided by the Framework?
Next, ESU argues that even if the Professors were permitted to make a notice-
based argument under the Framework, they waived any challenge to the adequacy of notice they received by participating in the administrative appeals of their terminations provided by the Framework—that is, the Professors' participation in the hearings before the ALJs waived any deficiencies that may have existed in their notices of termination. The Professors contend ESU's argument is not properly before this court because ESU is raising the issue for the first time on appeal. The Professors also assert that ESU's waiver claim has no merit. We will first address whether the issue is properly before this court.
The Professors assert that this court lacks "jurisdiction" to address ESU's waiver claim because ESU did not raise the issue at the administrative level. Under K.S.A. 77- 617, with some exceptions, a party may only obtain judicial review of an issue that was raised before the agency. See Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 411- 12, 204 P.3d 562 (2009) ("[A] district court may only review those issues litigated at the administrative level."). In its reply brief, ESU asserts that its claim falls under an exception because "K.S.A. 77-617[a] permits issues to be raised where '[t]he agency did not have jurisdiction to grant an adequate remedy based on a determination of the issue.'" ESU reasons—under its interpretation of the Framework—that "since the ALJ did not have jurisdiction to address the underlying 'notice' issue that the Professors raised, it equally did not have the jurisdiction to address the waiver issue[.]" We find this court has jurisdiction to address ESU's waiver claim.
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Even if the courts have jurisdiction to address ESU's waiver claim, the fact remains that ESU could have raised the claim in district court and failed to do so. ESU acknowledges that it is raising the claim for the first time on appeal but asserts it is properly before this court because the claim "involves only a question of law on proved or admitted facts and is determinative of the case." See In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008). But even if an exception to the preservation rules applies, an appellate court's decision to review an unpreserved claim under an exception is prudential—that is, this court is not obligated to review the claim. See, e.g., State v. Rhoiney, 314 Kan. 497, 500, 501 P.3d 368 (2021). We agree to address ESU's claim under its asserted exception to the preservation rules.
To support its claim that the Professors waived any argument about the sufficiency of the notice by appealing the termination decisions, ESU cites Hein v. Board of Education, U.S.D. No. 238, 10 Kan. App. 2d 303, 306, 698 P.2d 388 (1985), although ESU's brief includes no discussion of the case. In Hein, the school board notified Hein, a tenured teacher, that the board intended to eliminate Hein's position because of staff reductions. While the notice did not inform Hein that he had a right to a due process hearing, he timely filed a written request for a hearing. A hearing was held and Hein received "an opportunity to present his side of the controversy." 10 Kan. App. 2d at 306.
Hein later filed a declaratory judgment action alleging the school board had not complied with the hearing procedures of the Teacher Tenure Law, K.S.A. 72-5436 et seq. The district court granted relief to Hein because his notice of termination did not fully comply with the statute. On appeal, the Hein panel found that although the notice did not inform Hein of his right to a hearing, he "received a full and fair due process hearing within the statutory time constraints just as if he had been given proper notice. As such, the issue regarding deficient notice is moot." 10 Kan. App. 2d at 307. As the court observed, "[it] is significant to this court that Hein has not demonstrated that the deficient notice has in any way caused him harm." 10 Kan. App. 2d at 307.
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ESU argues the circumstances of this case are identical to Hein and this court should find that "it is uncontroverted that the Professors received precisely the type of administrative-appeal process that the B[oard] contemplated and that ESU adopted in the Plan." But Hein is distinguishable from our facts. For one thing, the analysis in Hein centered on the interpretation of the Teacher Tenure Law, K.S.A. 72-5436 et seq., that is inapplicable to the Professors. More importantly, although Hein did not receive statutory notice of his right to a hearing, he had a hearing anyway on the merits of his termination and had a chance to present his side of the controversy. As a result, this court found the notice issue was moot, observing that Hein had not shown that the deficient notice caused him any harm. This is not our situation here.
The ALJs' primary reason for granting relief to the Professors was that their notices of termination did not explain why they were being terminated, which effectively prevented them from exercising their rights to appeal under the Framework. Had the Professors received a full hearing on the substantive grounds for their terminations and been denied relief on the merits, it might be construed as a waiver of the deficiency of the notice. But how can an appeal challenging the sufficiency of the notice be considered a waiver of notice? We find no merit in ESU's claim that the Professors waived any notice- based argument by participating in the appeals process provided by the Framework.
Was the notice of termination that ESU provided to the Professors sufficient?
ESU finally argues that even if the ALJs and district court properly interpreted the COVID Policy and Framework as including the sufficiency of the notice as a basis for reversal of a termination decision, the notice of termination that ESU provided to the Professors was sufficient. The Professors respond that the ALJs' orders were based on substantial competent evidence, i.e., the notice itself provided substantial competent evidence for the ALJs' decisions. In its reply brief, ESU argues that the Professors' "substantial evidence" argument is a red herring because the issue involves the
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interpretation and legal effect of written instruments and this court should give no deference to the ALJs' determinations regarding the sufficiency of the notices. We agree that the argument ESU is making here involves the interpretation and legal effect of written instruments, and our review of this issue is unlimited. See Prairie Land Elec. Co- op v. Kansas Elec. Power Co-op, 299 Kan. 360, 366, 323 P.3d 1270 (2014).
On appeal, ESU does not analyze whether the individual notice of termination for each Professor provided them with the reasons for their termination. Instead, ESU argues collectively that the notices of termination were "sufficient." ESU asserts "the 'notice' that was given to the Professors was sufficient since it specifically set forth why the Professors [were] being terminated." As discussed, the Framework provided nine nonexclusive factors that ESU could consider in making any termination decision. The Framework also required ESU to provide written notice of termination to each employee and that the notice shall include "the reasons for the action being taken."
The notice to each Professor followed the same format. The first paragraph of each notice contained the identical sentence that the Professor's appointment to the university was ending "due to extreme financial pressure accelerated by COVID-19 pandemic, decreased program and university enrollment, continuing and ongoing increases in the cost of operations across campus, and substantive changes in the educational marketplace." The notices did not elaborate on what the university meant by "substantive changes in the educational marketplace." Then, each notice stated: "Specifically, this action is based on factors such as, but not limited to:" followed by a verbatim list of some of the nine factors in the Framework. Each notice then stated: "Secondary considerations may include:" followed by a verbatim list of the remaining nine factors in the Framework. So in the end, the notice to each Professor listed all nine of the potential factors upon which a termination decision could be based under the Framework.
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We agree with the ALJs and the district court that ESU—by broadly listing in each notice the same nine factors upon which the decisions were based—failed to adequately notify the Professors of the reasons for its termination decisions. By taking this shotgun approach to the notice of termination, ESU effectively prevented the Professors from exercising their rights to appeal under the Framework. The use of the qualifiers "but not limited to" and "may include" made it reasonable to believe that none of the listed factors were the reason for termination, but other undisclosed reasons existed for the termination.
Most importantly, the notice failed to specify why the particular Professor, rather than a colleague in the same department, was selected for termination. Without clear allegations that were particular for each employee, the Professors were deprived of the ability to gather relevant evidence, prepare documentation, or address the specific grounds for their terminations. The generic and nearly identical language in the notice of termination for each Professor essentially amounted to no notice at all, which was substantially inconsistent with the university's decision-making Framework approved by the Board. Thus, we reject ESU's claim that the notice of termination it provided to the Professors was sufficient to comply with the Framework.
CONCLUSION
There is no question the Board and ESU had the authority to define the scope of an appeal from a termination decision as they did in the COVID Policy and Framework. Once that scope was defined, ESU had to comply with the decision-making Framework it submitted with the Board's approval. The Framework required ESU to provide any university employee with a written notice of termination including "the reasons for the action being taken." The termination notices that ESU provided to the Professors—by broadly listing in each notice the same factors upon which the decisions were based— failed to adequately state the reasons for the termination decisions, effectively preventing the Professors from exercising their rights to appeal under the Framework. The ALJs
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could consider the sufficiency of the notices as a ground for reversal of a termination decision, and the ALJs and the district court did not misinterpret the COVID Policy and Framework by doing so. Likewise, the Professors did not waive any notice-based argument by participating in the appeals process. Based on the record submitted for our review and the parties' arguments, we find no error in the district court's judgment upholding the ALJs' orders reversing the Professors' terminations.
Affirmed.