Friends University has recently dealt with what could be any organization’s nightmare: An employee in a top position gets charged with a serious crime.
The situation raises questions of whether an employer can or should fire an accused worker before the courts have decided whether the person is innocent or guilty. Friends University fired Wayne R. Morgan Jr., who had been associate vice president for academic affairs, on May 2. The action came two days after Johnson County authorities charged him in an Internet sex sting, alleging he went to Olathe intending to have sex with someone he thought was a 15-year-old girl.
Friends didn’t wait to see whether Morgan would be convicted of the felony charge, electronic solicitation of a child under 16.
The university most likely has plenty of legal standing and latitude for firing Morgan, say some lawyers and other professionals who deal with employment issues.
“The fact that he’s presumed innocent in the criminal courts has nothing to do with his employment,” said Wichita employment lawyer Doug Mackay, who has worked as a Sedgwick County and Johnson County public defender.
“The university has to act to protect its reputation,” said Mackay, now with the firm of Kutak Rock LLP.
The ‘at-will’ factor
One key factor is that Kansas is an “at-will” employment state, meaning employees can be fired for any reason, or no reason at all, as long as the firing isn’t discriminatory under state or federal law, Mackay said.
The “at-will” situation applies unless a person has an employment contract or comes under civil service due-process regulations or collective-bargaining agreements that provide protection against firing.
Someone in an executive position would probably have a job contract spelling out what would qualify as a reason for termination, Mackay said.
But considering “the nature of the charge and the circumstances of the arrest,” Mackay said, he can’t envision any contract that wouldn’t allow for Morgan being fired promptly, before his case goes to trial.
Most employment contracts allow for firing someone in a situation like Morgan’s, where an employee being charged with a serious crime could affect the organization’s reputation because it draws negative attention, Mackay said.
A Friends spokeswoman told The Eagle that the school fired Morgan, who had been at the university for less than a year, because he violated its Internet use policy. Gisele McMinimy said the violation was related to the charge.
A decision that Morgan had violated the university’s Internet policy “would be just one more reason to sever the relationship,” Mackay said.
Because it is a personnel matter and involves a criminal investigation, McMinimy said, she wouldn’t discuss specifics of the violation or say whether Morgan had an employment contract.
Morgan, who previously worked at Sterling College and Hutchinson Community College, has not responded to messages seeking comment.
On May 1, investigators seized a computer from Morgan’s office at Friends, McMinimy said.
On April 30, hours after Morgan’s arrest in Olathe, investigators took two computers from his home in Haven, in Reno County.
Because Morgan worked for a private school, not a state college, it would be less likely there would be grievance hearings that could delay a firing, Mackay said.
Internet stings typically involve overwhelming evidence against defendants, Mackay said, noting that authorities said Morgan was arrested at an undercover house.
Even if Morgan or someone in a similar position had a contract saying that a firing could occur only upon a conviction, many organizations would be willing to face the possibility of a breach-of-contract action later to quickly distance themselves from an accused employee and protect their reputation, Mackay said.
What employers can do
Attorneys and human resources professionals said an employer is generally protected by state law when firing employees if they are charged with a crime.
“An employer or employee can terminate a relationship at any time, with or without cause,” said Kyelene Flaming, a human resources and training consultant for the Arnold Group and president of the Wichita chapter of the Society for Human Resource Management. “That’s global for Kansas employers.”
Flaming said most companies have policies that address the consequences for employees charged with crimes. Whether they immediately terminate or suspend the employee differs by company, she said.
Alex Mitchell, who practices employment law at Klenda Mitchell Austerman & Zuercher LLC, said despite the protection afforded employers, there are a couple of situations where employees can’t be promptly fired because of a criminal charge.
If the employee is a union member working under a collective bargaining agreement, it typically addresses whether they can be fired immediately or are entitled to an arbitration hearing, depending on the crime with which they are charged. The same is true for some government employees, Mitchell said.
The issue of whether to terminate can get more cloudy when considering the employee’s value to the company, Mitchell said.
“Do you back your employees and uphold the presumption of innocence until they are convicted?” Mitchell said.
Some local employers, such as Intrust Bank, have specific policies on employee conduct related to the company’s standing.
“Any conduct that discredits the bank, disrupts operations or is offensive, may be grounds for disciplinary action, including dismissal,” Intrust spokeswoman Diane Iseman said.
Other employers said they wouldn’t be quick to fire an employee charged with a crime.
“I think we all too often tend to barbecue people” before we know all the facts, said Mark Hutton, president and owner of Hutton Construction.
“As an employer, I would be very cautious to make sure I wouldn’t convict an employee before the court does.
“You owe them that. They need to have a fair shot.”
Dan Monnat, a defense lawyer with the Wichita firm of Monnat & Spurrier, said it seems unfair for Morgan to be fired while he is presumed innocent in a criminal court. The loss of his job makes it more difficult for him to defend himself, Monnat said.
Protecting your brand
Closely related to the issue of firing in a situation like Morgan’s are public relations considerations.
“You’re in the brand-protection business, and Friends has a brand that they’ve been forming and burnishing for decades,” said Al Higdon, retired chairman and chief executive of Sullivan Higdon & Sink advertising agency.
“When something like this crops up, you need to get the bad news behind as quickly as possible and move on,” he said.
“And you do that by coming out early and forthrightly announcing what your decision is, and stand by it and look to the future. Your job is to protect your students and protect the image of the university.”
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The Wichita Eagle – By Tim Potter and Jerry Siebenmark