*1 COMMISSION OF SCHOOL BOARD INDIANAPO OF the CITY
ERS OF (Defendant below),
LIS, Appellant
v. WALPOLE, Appellee
Michael below).
(Plaintiff
No. 49S00-0303-CV-112. of Indiana.
Supreme Court 13, 2004.
Jan. *2 Walpole's
dаtion that contract be canceled. record, by not point At some disclosed statutory right un- Walpole exercised his Act, requested a der the Tenure hear- hearing January for ing. The set in compliance requirement with the of the Tenure Act that it be held after at least Recker, Boshkoff, Ellen E. Roberta S. notiсe, thirty days forty days but within Barth, Shake, India- P. B. Keith Jessica 9, January eighteen days the notice. On IN, Attorneys Appellant. for napolis, hearing, Walpole sought to in- before Darko, Hylton, Richard J. Erie M. 28(F) by Indiana voke Trial Rules and 34 IN, Metzel, At- Indianapolis, M. Andrielle a serving request production for of docu- torneys Appellee. for infоrmally He ments. also asked the IN, Tanselle, Ami- Indianapolis, F. Lisa deposi- Board to allow him to take several Indiana Boards Associa- cus Curiae School a postponement tions and of the requested hearing to accommodate the desired dis- tion. covery. Noblesville, IN, Day, Amicus David R. of Public Indiana Association Curiae pre-hearing At a conference held the Superintendents.
School day, January representative next
of the Board stated that the Board intend- provide Walpole to with all relevant ed documents, including the documents he re- subject privilege to and confiden- quested, tiality Walpole concerns. renewed his re- BOEHM, Justice. to allow time for quest for continuance relationship The between a school board discovery. January On the Board de- governed in Indiana and its teachers Walpole's request for formal discov- nied Act provides The Teacher Tenure statute. ery rejected request and also his for a teacher, a school upon request of the Walpole requested then continuance. hearing must conduct a to consider permit to a court to decide continuance permanent the termination of a semi- matter, request was also de- but that contract. Indiana permanent nied. for trial discov- provides Trial Rule ery procedures apply certain adminis- January Walpole filed this law- On hold that proceedings. After a Superior suit in Marion Court. hear- apply Rule does not to termination prelimi- entered a hearing, the trial court the Tenure Act. ing under injunction nary enjoining Board ordering the conducting its permanеnt was a Walpole Michael op- a reasonable Walpole Board to allow Indianapolis Public Schools. Trial Rule portunity for under Board of Com- October of School concluded that a City Indianapolis sus- The trial court missioners board "is an administrative Walpole pay. with On December pеnded Trial discovery under things for such as year, Superintendent gave 20 of planned 28(F)," Walpole notice the Board ruled that to the extent January meeting hold a on the Tenure Trial Rule conflicts with Act, governs. Trial Rule recommen- Superintendent's consider the for of the Ad interlocutory appeal purposes took this istrative Board and Procedures Act ministrative Orders granting prelimi- trial court's (AOPA) applies only to because AOPA injunction pursuant Appellate nary agencies apply state-wide and does 14(A)(5) emergency petitioned government. local v. Fort arms of Stewart *3 pursuant to this to Indiana transfer Court Sch., 274, Cmty. 564 N.BE.2d 277 Waynе 56(A). argued Rule The Board Appellate (Ind.1990). However, of Ap the Court "appeal presents that a 'substantial this peals concluded that a school board has great public or fact of question of law an should be treated as administrative emergency an which importance and exists it purposes for some when consid ques- speedy makes a determination Specifically, ers a teacher's termination. in This tion desirable' this Court." Dietrich, County Scott School District v. granted transfer. 91, (Ind.Ct.App.1986), 496 N.E.2d 92 held a requires The Tenure Act charges that when a school board hears notify permanent board to teacher when аgainst a teacher the board is an "adminis plans to cancel the teacher's contract. triggers require trative (1998). § Upon 20-6.1-4-11 no Ind.Code 52(A)(2) of Trial that a ment Rule review tification, may request teacher a hear ing special findings trial court make of hearing, matter. At the ing on the Id. fact. The court reached this сonclusion teacher is entitled to receive a statement even the Tenure Act not does re for the recommendation and reasons quire findings the Board to make of fact. present evidence related to those rea Education, Similarly, in Doran v. Board of Walpole argues, and the trial sons. Id. Ind.App. 152 283 N.E.2d 387 (1972), agreed, court that Indiana Trial Rule Appeals the Court of held that a hearings, allowing him to applies to these school board acts as an administrative preparation conduct full for body when charges against a hearing. charged teacher and therefore "is with the legal procedure same of accepting or re 28(F) provides: Trial Rule jecting evidence as a state wide adminis (F) Discovery proceedings before ad- body." Although County Scott agencies ministrative Doran used the terms "administrative en adjudicatory hearing, an in- Whenever tity" and body" "administrative to refer to cluding any hearing any prоceeding 52(A)(2) board, the school Trial Rule uses review, subject is held agency," "administrative and that is the agency, any before an administrative same term that is found in Trial Rule party adjudicatory hearing to that shall 28(F). cases, Walpole From these reasons discovery provi- be entitled to use the that Trial Rule apрlies a termi through sions Rules 26 37 of the hearing. nation agree We that Rule Indiana Rules of Trial Procedure. Such 52(A)(2) is properly applied to re any shall include relevant mat- view of a Tenure Act termination. But ter custody within the control of court, applies to the trial not to agency. administrative board, the school plainly intraju- and is an provision. provision dicial branch By terms, applies only its rule Walpole invokes involves somewhat differ to an "adjudicatory hearing" before an ent considerations. A agency." "administrative school board acting under the Tenure Act on a termi think that when a school board acts nаtion has an been held not to be "admin- to determine whether a employ-
625
id.;
see
hearing.
See
also Vukadinovich
terminated,
does
ment should be
Trs.,
F.Supp.
1329-
v. Bd.
Sch.
agency as
act as an administrative
not
(N.D.Ind.1991).
30
con-
is used
term
text,
performing
is not
a school board
We think the Tenure
struck its own
acting
as a
action. It is
typicаl agency
employment-at-will
balance between
licenses,
issuing
rates or
regulator, setting
due on
process
termination
members of the
affecting
or otherwise
Act,
termi-
teacher. Before
teacher
body, the
Although
public
it is a
public.
Hyde
nation
viewed as "ministerial."
act,
managerial
es-
performing a
board is
Comm'rs,
v. Bd.
209 Ind.
dealing
sentially acting
employer
as an
(1935).
N.E.
The Act does not
organi-
of its
operations
internal
with the
change
provide
that status or
*4
zation.
rights
more
than
enumerates. There-
fore,
Act
even
the Tenure
creates
sure,
regu
Act
the Tenure
To be
in large part
and remedies
sim-
procedures
perma
and confers on
process
lates this
adjudicatory proceedings
ilar to
under oth-
interest
their
property
teachers a
nent
do not
agencies,
procedures
er
these
trans-
Stewart,
tion, discovery, expedited without SULLIVAN, Justice, dissenting. February days after the eleven majority acknowledges was scheduled. review of Teacher Tenure terminations *5 Walpоle points possible out that it is by among are the actions "an administra- compress thirty formal into the agency" governed by provisions tive window, forty only can day but be 52(A)(2). our Trial goes Rule But it on to by done teacher termination into forcing exactly conclude that even we use injunction preliminary the mode of a hear- in expression same our Trial Rule ing with shortened deadlines for document 28(F), judicial we mean to exclude review production, depositions, interrog- notice of by of Teacher Tenure Act terminations "an atory responses requests and for admis- provisions. administrative from its sion. in Litigation this mode is both ex- judicial I think review of Teacher Ten- pensive Discovery exhausting. and is a by ure terminations is covered two-way street, so both teachers and 28(F) plain language of TR. and should be. Massive, school boards are affected. hur- Judicial disputed review of issues of fact in ry-up discovery can divert attention from proceeding teacher termination is con- other aspects operating system. school record; fined to the school board's legislature
We do not believe the intended try court does not the cause de novo or impose those costs on either school judgment substitute its for that of the done, boards or If teachers. that is to be opportunity board. Without the should be act of the General Assem- 28(F) provides, that TR. an ac- bly which can weigh best the relative costs may cused teacher not have the opportuni- and procedures. benefits of more formal ty place story his or her side of the in Finally, argues any the Board con- 28(F) view, my the record. T.R. exists 28(F) that; flict Trial to assure in return for between and the defer- ence to Tenure Act should in favor of agency factfinding, administrative be construed parties the Tenure Act and that Trial will have a full and fair oppor- would violate the Indiana require- constitutional tunity to develoр the evidence that separation ment of of functions in this agency administrative will consider. This especially important context. Because where the adminis- conclude that Trial we is the school board-which apply does not to a school board when it effectively decides whether to operates prosecutor, cancel as judge, 23(28), proceed- Discipline Rule termination iden- jury sion and and imposed in reciprocal discipline tical be ings. 10, 2008, On October this state. here is the teacher recognize I Cause, to issued an Order to Show But misconduct. with serious charged respondent responded. has not which the to de- fair a full and without us for final resolu- This case is now before evidence, how will the school velop his tion. a court on to mention board-not respondent We now find this is a to tell whether able review-be practice law Indiana admitted a case of a strict but misconduct or case of rеspondent Illinois in 1986. The faced and by a student falsely accused fair teacher in the five counts of misconduct State disciplined? has been who Hearing Illinois. On October of the trial affirm the decision I would Attorney Registration of the Illinois Board court. issued its re- Disciplinary Commission recommendation, finding that the port and nеglected a client's case respondent had deceitful, that was engaged conduct respon- fraudulent and dishonest. neglecting a dent's misconduct included misleading the client client's case and case, to file a handling the failure about Richard In the Matter of return, mis- filing tax false and state DARBY, D. Jr. giving false testimo- leading pleadings *6 bankruptey. The Board ny personal his No. 98S00-0309-DI-417. respondent failed also found Indiana. Supreme Court of disciplin- in the meaningfully participate him. The brought against ary proceeding 14, 2004. Jan. respondent that the Board recommended IMPOSING IDENTICAL January ORDER be disbarred. On DISCIPLINE RECIPROCAL ordered that Supreme Illinois Court Richard re respondent be disbarred. Supreme Disciplin- Court The Indiana Iv., 628. Pursuant Darby, D. No. 98 CH Notice ary filed its Commission Verified rule, an order of disbarment to Illinois and Petition Is- Foreign Discipline seeking reinstate- lawyer precludes to Show Cause on an Order suance of years. Supreme Tllinois ment for 19, 2003, advising that the re- September Rule 767. Jr., Darby, was dis- Richard D. spondent, that, Ad-mis.Disc.R. pursuant find further Supreme Court of Ilinois ciplined by the 23(28) (c),1 to Ind. Admis- has requesting, pursuant respondent which the upon the face of the record from Discipline Admission 1. Ind. discipline predicated, that: 23(28)(c) provides: (30) (c) thirty days expiration Upon (1) lacking in notice procedure was so to show [order of the order from service be heard as to consti- (b), in subsection this Court set out cause] deprivation process; tute a of due impose discipline identical to that or- shall (2) proof infirmity estab- was such There jurisdiction unless the Ex- in the other dered give rise to lishing misconduct as to demonstrate, Secretary lawyer or the ecutive could that the Court the clear conviction clearly appears or this Court finds