Attorneys for Appellant Attorneys for Appellee
Ellen E. Boshkoff Richard J. Darko
Roberta S. Recker Eric M. Hylton
Jessica P. Barth Andrielle M. Metzel
Indianapolis, Indiana Indianapolis, Indiana
B. Keith Shake
Indianapolis, Indiana
amicus curiae
indiana school boards association
Lisa F. Tanselle
Indianapolis, Indiana
amicus curiae
indiana association of public school
superintendents
David R. Day
Noblesville, Indiana
________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 49S00-0303-CV-112
Board of School Commissioners of
the City of Indianapolis,
Appellant (Defendant below),
v.
Michael Walpole,
Appellee (Plaintiff below).
_________________________________
Appeal from the Marion Superior Court, No. 49D07-0301-PL-123
The Honorable Gerald S. Zore, Judge
_________________________________
On Petition To Transfer Pursuant to Indiana Appellate Rule 56(A)
_________________________________
January 13, 2004
Boehm, Justice.
The relationship between a school board and its teachers is governed
in Indiana by statute. The Teacher Tenure Act provides that upon request
of the teacher, a school board must conduct a hearing to consider the
termination of a permanent or semi-permanent teacher’s contract. Indiana
Trial Rule 28(F) provides for trial discovery procedures to apply in
certain administrative proceedings. We hold that this Rule does not apply
to a termination hearing under the Tenure Act.
Michael Walpole was a permanent teacher in Indianapolis Public
Schools. In October of 2002, the Board of School Commissioners of the City
of Indianapolis suspended Walpole with pay. On December 20 of that year,
the Superintendent gave Walpole notice that the Board planned to hold a
meeting on January 28, 2003, to consider the Superintendent’s
recommendation that Walpole’s contract be canceled. At some point not
disclosed by the record, Walpole exercised his statutory right under the
Tenure Act, and requested a hearing. The hearing was set for January 27 in
compliance with the requirement of the Tenure Act that it be held after at
least thirty days notice, but within forty days of the notice. On January
9, eighteen days before the hearing, Walpole sought to invoke Indiana Trial
Rules 28(F) and 34 by serving a request for production of documents. He
also informally asked the Board to allow him to take several depositions
and requested a postponement of the hearing to accommodate the desired
discovery.
At a pre-hearing conference held the next day, January 10, the
representative of the Board stated that the Board intended to provide
Walpole with all relevant documents, including the documents he requested,
subject to privilege and confidentiality concerns. Walpole renewed his
request for a continuance to allow time for discovery. On January 21, the
Board denied Walpole’s request for formal discovery and also rejected his
request for a continuance. Walpole then requested a continuance to permit
a court to decide the matter, but that request was also denied.
On January 22, Walpole filed this lawsuit in Marion Superior Court.
After a hearing, the trial court entered a preliminary injunction enjoining
the Board from conducting its hearing and ordering the Board to allow
Walpole a reasonable opportunity for discovery under Trial Rule 28(F). The
trial court concluded that a school board “is an administrative agency for
such things as discovery under Trial Rule 28(F),” and ruled that to the
extent Trial Rule 28(F) conflicts with the Tenure Act, the Trial Rule
governs.
The Board took this interlocutory appeal of the trial court’s granting
of a preliminary injunction pursuant to Appellate Rule 14(A)(5) and
petitioned for emergency transfer to this Court pursuant to Indiana
Appellate Rule 56(A). The Board argued that this “appeal presents a
‘substantial question of law or fact of great public importance and an
emergency exists which makes a speedy determination of the question
desirable’ in this Court.” This Court granted transfer.
The Tenure Act requires a school board to notify a permanent teacher
when it plans to cancel the teacher’s contract. Ind. Code § 20-6.1-4-11
(1998). Upon notification, the teacher may request a hearing on the
matter. Id. At the hearing, the teacher is entitled to receive a
statement of the reasons for the recommendation and to present evidence
related to those reasons. Id. Walpole argues, and the trial court agreed,
that Indiana Trial Rule 28(F) applies to these hearings, allowing him to
conduct full discovery in preparation for the hearing.
Trial Rule 28(F) provides:
(F) Discovery proceedings before administrative agencies
Whenever an adjudicatory hearing, including any hearing in any
proceeding subject to judicial review, is held by or before an
administrative agency, any party to that adjudicatory hearing shall be
entitled to use the discovery provisions of Rules 26 through 37 of the
Indiana Rules of Trial Procedure. Such discovery shall include any
relevant matter within the custody and control of the administrative
agency.
By its terms, this rule applies only to an “adjudicatory hearing”
before an “administrative agency.” A school board acting under the Tenure
Act on a termination has been held not to be an “administrative agency” for
purposes of the Administrative Orders and Procedures Act (AOPA) because
AOPA applies only to state-wide agencies and does not apply to arms of
local government. Stewart v.Fort Wayne Cmty. Sch., 564 N.E.2d 274, 277
(Ind. 1990). However, the Court of Appeals has concluded that a school
board should be treated as an administrative agency for some purposes when
it considers a teacher’s termination. Specifically, Scott County School
District v. Dietrich, 496 N.E.2d 91, 92 (Ind. Ct. App. 1986), held that
when a school board hears charges against a teacher the board is an
“administrative agency” that triggers the requirement of Trial Rule
52(A)(2) that a reviewing trial court make special findings of fact. The
court reached this conclusion even though the Tenure Act does not require
the Board to make findings of fact. Similarly, in Doran v. Board of
Education, 283 N.E.2d 385, 387 (Ind. Ct. App. 1972), the Court of Appeals
held that a school board acts as an administrative body when hearing
charges against a teacher and therefore “is charged with the same legal
procedure of accepting or rejecting evidence as a state wide administrative
body.” Although Scott County and Doran used the terms “administrative
entity” and “administrative body” to refer to the school board, Trial Rule
52(A)(2) uses “administrative agency,” and that is the same term that is
found in Trial Rule 28(F). From these cases, Walpole reasons that Trial
Rule 28(F) applies in a termination hearing. We agree that Rule 52(A)(2)
is properly applied to judicial review of a Tenure Act termination. But
that Rule applies to the trial court, not to the school board, and is
plainly an intrajudicial branch provision. The provision Walpole invokes
involves somewhat different considerations.
We think that when a school board acts to determine whether a
teacher’s employment should be terminated, the board does not act as an
administrative agency as that term is used in Rule 28(F). In this context,
a school board is not performing a typical agency action. It is not acting
as a regulator, setting rates or issuing licenses, or otherwise affecting
members of the public. Although it is a public body, the board is
performing a managerial act, essentially acting as an employer dealing with
the internal operations of its organization.
To be sure, the Tenure Act regulates this process and confers on
permanent teachers a property interest in their jobs. See Stewart, 564
N.E.2d at 280. The Act also requires that the school board’s actions be
for cause, confers a right to a hearing, and provides for judicial review.
These characteristics of the school board’s action do not lead us to the
conclusion that the hearing is adjudicatory. They arise from the
requirements of the statute, not from the nature of the school board’s
actions under review. The Board remains an employer dealing with a
personnel matter, albeit one with procedures and rights that exist by
mandate of the statute. See I.C. § 20-6.1-4-11–2. Because the teacher has
a property right, termination of employment must comport with due process
requirements. See Stewart, 564 N.E.2d at 280. Accordingly, the statute
also provides notice and hearing requirements before a school board may
deprive the teacher of his or her right to employment. I.C. § 20-6.1-4-11.
But, in this context, due process requires only that the employee be given
“notice of the charges against him, an explanation of the employer's
evidence, and an opportunity to present his side of the story.” Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985) (citations omitted).
Due process does not include discovery rights in a termination hearing.
See id.; see also Vukadinovich v. Bd. of Sch. Trs., F. Supp. 1325, 1329-30
(N.D. Ind. 1991).
We think the Tenure Act struck its own balance between employment-at-
will and the process that is due on termination of a teacher. Before the
Act, teacher termination was viewed as “ministerial.” Hyde v. Bd. of
Comm’rs, 209 Ind. 245, 259, 198 N.E. 333, 338 (1935). The Act does not
change that status or provide a teacher more rights than it enumerates.
Therefore, even though the Tenure Act creates procedures and remedies in
large part similar to adjudicatory proceedings under other agencies, these
procedures do not transform the hearing from the internal action of an
employer to an administrative hearing of an agency of the type contemplated
by Trial Rule 28(F). Rather the Tenure Act both creates and defines the
limits of the required process. It does not provide for formal discovery
procedures of the kind found in the Trial Rules.
We reach this conclusion in large part based on the structure of the
Tenure Act. The statute provides a specific procedure for terminating
teacher contracts including detailed notification and timing requirements.
Importantly, the Act requires that a teacher be notified of the
recommendation that the contract be terminated at least thirty days, but
not more than forty days before the school board considers the
recommendation. I.C. § 20-6.1-4-11. This specific timeline reflects a
legislative intent that a school board give notice, but also act promptly
in considering a recommendation to terminate a teacher’s contract. Because
the Tenure Act provides such a detailed and time-constrained method for
dealing with teacher contracts, we conclude that the legislature did not
intend for full discovery to be available in a hearing to consider
termination of a teacher’s contract. The timetables for ordinary discovery
do not fit within the statutory schedule for a Tenure Act termination. For
example, under Trial Rule 34, the deadline for responding to a request to
produce documents is ordinarily thirty days from the date of the request.
Orderly discovery under the Trial Rules typically proceeds from document
production to depositions with interrogatories and requests for admission
often both preceding and following depositions. In this case, the earliest
possible deadline for document production, without expedited discovery, was
February 8, eleven days after the hearing was scheduled.
Walpole points out that it is possible to compress formal discovery
into the thirty to forty day window, but this can only be done by forcing
teacher termination into the mode of a preliminary injunction hearing with
shortened deadlines for document production, notice of depositions,
interrogatory responses and requests for admission. Litigation in this
mode is both expensive and exhausting. Discovery is a two-way street, so
both teachers and school boards are affected. Massive, hurry-up discovery
can divert attention from other aspects of operating a school system. We
do not believe the legislature intended to impose those costs on either
school boards or teachers. If that is to be done, it should be by act of
the General Assembly which can best weigh the relative costs and benefits
of more formal procedures.
Finally, the Board argues that any conflict between Trial Rule 28(F)
and the Tenure Act should be construed in favor of the Tenure Act and that
Trial 28(F) would violate the Indiana constitutional requirement of
separation of functions in this context. Because we conclude that Trial
Rule 28(F) does not apply to a school board when it decides whether to
cancel a teacher’s contract, we do not need to address this contention.
Conclusion
A school board is not required to allow a teacher full discovery in
preparation of a hearing to consider the teacher’s dismissal. The decision
of the trial court is reversed.
SHEPARD, C.J., and DICKSON, and RUCKER, JJ., concur.
SULLIVAN, J., dissents with separate opinion.
Sullivan, Justice, dissenting.
The majority acknowledges that judicial review of Teacher Tenure Act
terminations are among the actions by “an administrative agency” governed
by the provisions of our Trial Rule 52(A)(2). But it goes on to conclude
that even though we use exactly the same expression in our Trial Rule
28(F), we mean to exclude judicial review of Teacher Tenure Act
terminations by “an administrative agency” from its provisions.
I think judicial review of Teacher Tenure Act terminations is covered
by the plain language of T.R. 28(F) and should be. Judicial review of
disputed issues of fact in a teacher termination proceeding is confined to
the school board’s record; the court does not try the cause de novo or
substitute its judgment for that of the school board. Without the
opportunity for discovery that T.R. 28(F) provides, an accused teacher may
not have the opportunity to place his or her side of the story in the
record. In my view, T.R. 28(F) exists to assure that, in return for
judicial deference to administrative agency factfinding, the parties will
have a full and fair opportunity to develop the evidence that the
administrative agency will consider. This is especially important where
the administrative agency is the school board -- which effectively
operates as prosecutor, judge, and jury in teacher termination proceedings.
I recognize that the teacher here is charged with serious misconduct.
But without a full and fair opportunity to develop his evidence, how will
the school board – not to mention a court on judicial review – be able to
tell whether this is a case of misconduct or a case of a strict but fair
teacher falsely accused by a student who has been disciplined?
I would affirm the decision of the trial court.