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
indiana school boards association
Lisa F. Tanselle
indiana association of public school
David R. Day
Indiana Supreme Court
Board of School Commissioners of
the City of Indianapolis,
Appellant (Defendant below),
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
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 teachers 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 Superintendents recommendation that Walpoles 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 Walpoles 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
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 courts 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 teachers 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 teachers 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 teachers
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 boards actions be for
cause, confers a right to a hearing, and provides for judicial review.
These characteristics of the school boards 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 boards 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. § 20-6.1-4-112. 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 Commrs, 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 teachers 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 teachers 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 teachers contract,
we do not need to address this contention.
A school board is not required to allow a teacher full discovery in
preparation of a hearing to consider the teachers 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
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 term
ination proceeding is confined to the school
boards 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 st
udent who has
I would affirm the decision of the trial court.