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Romkes v. University of Kansas

Court of Appeals of Kansas

January 17, 2014

Albert ROMKES, Ph.D., Appellant,
v.
The UNIVERSITY OF KANSAS, Appellee.

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[Copyrighted Material Omitted]

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Syllabus by the Court

1. K.S.A. 2012 Supp. 77-603(a) of the Kansas Judicial Review Act defines the scope of judicial review of the actions of state agencies not specifically exempted from its application.

2. There is a presumption that an agency's action was valid. On appeal, under K.S.A. 2012 Supp. 77-621(a)(1), the burden of proving the invalidity of the agency's action rests on the party asserting such invalidity.

3. Subject to the limited exceptions found in K.S.A. 2012 Supp. 77-617, in an appeal from a decision by an administrative agency, a party is generally limited to the issues raised before the administrative agency. Thus, a district court generally may only review those issues litigated at the administrative level.

4. Appellate courts exercise the same statutorily limited review of an agency's action as do the trial courts, i.e., as though the appeal had been made directly to the appellate court.

5. Including documents in an appendix to an appellate brief does not make them part of the record for appellate review. The burden is on the party making a claim of error to designate facts in the record to support that claim. Without such a record, the claim of error fails.

6. K.S.A. 2012 Supp. 77-617(d)(2) was not designed to provide relief to a person appealing an agency action based on an issue that had been known to such person throughout the administrative proceedings but ignored and left unexplored until the very day of the agency's final action.

7. In determining the sufficiency of the evidence to support an agency's decision, the reviewing court examines the record as a whole to identify evidence that supports and evidence that detracts from the agency's decision. In considering evidence that detracts from the agency's decision, the reviewing court must determine whether such evidence so undermines the agency's decision that it renders the evidence as a whole insufficient to support the agency's decision. But in doing so, the reviewing court does not reweigh the evidence or conduct a de novo review. K.S.A. 2012 Supp. 77-621(d).

8. To uphold an agency's decision, the supporting evidence must be substantial, meaning that a reasonable person could accept such evidence as being sufficient to support the conclusion reached.

9. In reviewing the propriety of an academic institution's decision regarding whether to grant lifetime tenure to a member of its faculty, reviewing courts extend some degree of deference to the academic institution in making such a business and academic decision. The reviewing court does not reweigh the facts that were before the academic institution in making its decision.

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10. Pursuant to K.S.A. 2012 Supp. 77-621(c)(8), a reviewing court can grant relief when the agency action is unreasonable, arbitrary, or capricious. Under Kansas law, an agency acts arbitrarily or capriciously when its actions are overtly and patently in violation of the law or are unreasonable and without foundation in fact. With respect to the issue of reasonableness, a reviewing court examines whether the agency was reasonable in exercising its discretion in reaching its decision. In doing so, the reviewing court considers whether the agency's explanation of its action runs counter to the evidence before it and whether the agency's explanation is so implausible that it could not be ascribed to merely a difference in views.

11. K.S.A. 77-619(a) permits the district court to receive evidence that was not before the administrative agency in certain limited situations. Whether to admit additional evidence not found in the agency record is within the sound discretion of the district court. Judicial discretion is abused if the decision is: (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact.

Matthew M. Coleman and Robert E. Keeshan, of Scott, Quinlan, Willard, Barnes & Keeshan, LLC, of Topeka, for appellant.

Sara L. Trower, associate general counsel and special assistant attorney general, and Derek Schmidt, attorney general, for appellee.

Alan L. Rupe and Jeremy Schrag of Kutak Rock LLP, of Wichita, argued the cause, and Jessica L. Skladzien was with them on the brief for amicus curiae Kansas Conference of the American Association of University Professors.

Before McANANY, P.J., POWELL, J., and DAVID L. STUTZMAN, District Judge, assigned.

McANANY, J.

Dr. Albert Romkes, an assistant professor in mechanical engineering at the University of Kansas School of Engineering, challenged the University of Kansas' (University) decision to deny him tenure. He brought this action for judicial review in the district court and asked the court to overturn the University's decision. The district court denied relief, and Romkes brought this appeal.

As the reader will soon learn, at the focus of this case is the notion of a " principal investigator." This principal investigator concept relates to the requirement set forth in the Faculty Senate Rules and Regulations that a tenure applicant must demonstrate " a record of accomplishment reflecting a sustainable program of scholarly activity."

Section 6.1.1.1 of the University's Faculty Senate Rules and Regulations emphasizes that an " award of tenure and/or promotion in rank are among the most important and far-reaching decisions made by the University." Tenure generally provides a faculty member with a lifetime of academic independence and job security. It is the University's position that research and research funding pressures make it important for tenure candidates to demonstrate the ability to obtain outside research funds on their own as a principal investigator and not merely by participating in a research project for which someone else is the principal investigator and the " hook" for obtaining funds for the project. The University finds it fiscally unwise in this era of ever-tightening purse strings for it to grant tenure to a faculty member who cannot attract outside funds for his or her own research projects.

The phrase principal investigator is found in the tenure requirements approved by the faculty of the Mechanical Engineering Department in November 2009. According to the Mechanical Engineering Department's requirement now being challenged: " Candidates must demonstrate ability to attract external funding for their research, as demonstrated by funded external grants with the candidate as principal investigator." Dr. Romkes argues for the first time on appeal that these departmental requirements were never properly approved at the University level and, therefore, this requirement should not have been applied to him. It appears that the review of the Mechanical Engineering Department's tenure requirements was delayed because of the volume of such policies

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from the various schools and departments within the University. Nevertheless, the requirement was discussed with Dr. Romkes during his third-year tenure-track review almost a year and a half earlier in June 2008. As we shall see, the University ultimately denied tenure based on Dr. Romkes inability to satisfy this requirement.

History

In August 2005, the University hired Dr. Romkes as an assistant professor of mechanical engineering, a tenure-track position. According to the University's Faculty Senate Rules and Regulations, the rules that govern tenure decisions, Dr. Romkes had to apply for tenure by the end of his sixth year of employment. If tenure was denied, the following year, his seventh year, became his final year of employment.

In June 2008, the Chair of the Mechanical Engineering Departmental Promotion and Tenure Committee wrote to Dr. Romkes regarding his third-year review and how he was progressing towards tenure:

" Overall, the committee felt that you are making good progress toward promotion to associate professor with tenure.... In terms of external funding, you have made several applications and serve [as] co-investigator on grants. It is vitally important that you demonstrate your ability to attract external research funding for the promotion and tenure review process. Thus, you are encouraged to increase your proposal submissions as principal investigator, to help assure that you will have a good track record of external funding at the time of your final P & T review. So that you are clear on the timeline, your completed promotion and tenure materials for that decision will be due to the Departmental P & T Committee in October of 2010. This leaves approximately two years to build your record of publications and external funding, and I encourage you to work hard to continue your efforts."

On behalf of the School of Engineering, Professor Ronald Dougherty made similar observations about Dr. Romkes' third-year review. He attached to his remarks a page from the School of Engineering's assessment which stated: " [T]his committee also believes that more effort and success in pursuit of external funding is needed to expand his research group and level of research activity to build the necessary case for his promotion with an award of continuous tenure." Professor Dougherty noted: " [T]he main focus for you in the next three years will be on research funding and publications."

Dr. Romkes was encouraged to ask any questions about these evaluations regarding his current progress toward tenure. We see no indication that Dr. Romkes responded with any challenge to the use of the principal investigator criterion.

As directed, Dr. Romkes submitted his tenure application in October 2010 to begin the multilayered review process. The initial review was conducted by Dr. Romkes' Mechanical Engineering Department. The intermediate review was conducted by the School of Engineering. Then, there was a University-level review conducted by the University Committee on Promotion and Tenure. Once the University-level review was completed, the results were forwarded to the Chancellor, who made the final decision on tenure.

Each level of the review process is an independent evaluation of the applicant's record of performance, and each level of review results in an independent recommendation to the Chancellor. Indeed, according to the Faculty Senate Rules and Regulations, " later stages of review neither affirm nor reverse earlier recommendations, which remain part of the record for consideration by the Chancellor." When reviewing an application for tenure, the reviewing body at each level independently examines the applicant's teaching, scholarship (including research), and service.

The review process for Dr. Romkes' tenure application began with his Mechanical Engineering Department.

Mechanical Engineering Department Review

The initial review was conducted by the Mechanical Engineering Department's Promotion and Tenure Committee. The procedure for the department's review set forth

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the various factors to be considered: teaching, research and scholarship, and service. In discussing research, the department evaluators were instructed: " Candidates must demonstrate ability to attract external funding for their research, as demonstrated by funded external grants with the candidate as principal investigator." It is this requirement that Dr. Romkes now challenges.

The department asked seven external engineering academics to review Dr. Romkes' academic record. Although a majority of the evaluators recommended that Dr. Romkes receive tenure, many were concerned with his ability to conduct independent research and his ability to secure external grants to support his research. Several evaluators noted that a substantial amount of Dr. Romkes' scholarly work had been co-written with two of his mentors who were world-renowned experts in mechanical engineering and considered " pillars in the finite element community."

The 12 members of the department's Promotion and Tenure Committee unanimously rated Dr. Romkes excellent in teaching and advising. But members of the committee had differing opinions regarding the quality of Romkes' research record. Four members assessed Romkes' research record as " very good," four assessed his record as " good," and four assessed his record as " marginal." The committee rated Dr. Romkes' research overall as good.

The Chair of the Mechanical Engineering Department, Professor Dougherty, also reviewed Dr. Romkes' tenure application in October 2010 and recommended against tenure because of Dr. Romkes' failure to establish a sustainable independent research program. Professor Dougherty stated:

" Dr. Romkes is an exceptional faculty member in many ways.... However, the independence of his research/scholarly program has not been clearly established. Such independence translates into he [ sic ] and his graduate students publishing a reasonable number of peer-reviewed journal papers [independent of his mentors] and the ability to support his graduate students through external funding sources."

On October 25, 2010, Dr. Romkes submitted his response to Professor Dougherty's criticism, pointing to his scholarly publications and noting that the independence of his scholarship was not questioned during his 2008 tenure-track review. He pointed out that he had secured $100,000 in external research funding as a co-investigator since joining the faculty. He acknowledged that " more funding is needed to support my graduate students and a record of successfully acquiring such funding as PI would obviously substantiate the independence of my scholarly activities. However, the current limited amount of external funding is not due to a lack of effort!" In his response, Dr. Romkes did not challenge the propriety of the department using the principal investigator standard, he merely argued that in the current economic climate it was difficult to obtain outside research funds.

School of Engineering Review

On December 21, 2010, the School of Engineering conducted its own review of Dr. Romkes' tenure application. The review committee, made up of five faculty members from the engineering school, recommended that Dr. Romkes receive tenure, though it acknowledged his lack of success in obtaining financial resources to support his scholarly work. In particular, the committee noted the following:

" Since coming to KU in 2005, Dr. Romkes' research funding has been $100K as a Co-I and $8K as a PI. This level of funding was considered low by the committee but his efforts in submitting 8 external proposals as PI to federal agencies indicate that he has been making a concerted effort to obtain funding. Unfortunately, his field of expertise is computational fluid dynamics where funding is very tight.
" The committee spent a good deal of time on this case and decided unanimously that despite the low level of funded research, Dr. Romkes is someone to whom we should grant promotion ...

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