FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
RICHARD W. ROGERS CRAIG M. BUCHE
Middlebury, Indiana Yoder, Ainlay, Ulmer & Buckingham
Goshen, Indiana
________________________________________________________________________
IN THE
COURT OF APPEALS OF INDIANA
ROBERT R. BAKER, )
)
Appellant-Plaintiff, ) )
vs. ) No. 20A05-0012-CV-523
)
THE TOWN OF MIDDLEBURY, INDIANA, )
and GREGG FORE, JAMES RIEGSECKER, )
JAMES MILLER, GARY O’DELL, RUTH )
EASH, All in their official capacities as )
members of the Middlebury, Indiana Town )
Council, )
)
Appellees-Defendants. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable L. Benjamin Pfaff, Judge
Cause No. 20D01-0002-CP-59
________________________________________________________________________
August 6, 2001
OPINION-FOR PUBLICATION
BAKER, JUDGE
Appellant-plaintiff Robert R. Baker appeals the trial court’s dismissal of his complaint pursuant
to Ind.Trial Rule 12(B)(6) for failure to state a claim upon which relief
can be granted. Specifically, Baker contends that the appellee-defendant Middlebury Town Council’s
(Council) compilation of the list of employees to be rehired for the year
2000 in executive session, and his exclusion from that list, constituted impermissible final
action in violation of Ind. Code §§ 5-14-1.5-1 to 8 (Open Door Law).
Baker also contends that the Council violated the Open Door Law
by giving incorrect notice of the subject matter of its executive session, and
that trial court erred in dismissing his complaint with prejudice.
FACTS
The facts most favorable to the non-movant are that Baker was employed as
the Town Marshal for the Town of Middlebury (Middlebury). At 4:00 p.m.
on January 4, 2000, the Council convened in executive session at the Town
Hall. During that session, the Council President told Baker that the Council
had decided not to rehire him as Town Marshal because of “problems with
the police department.” Record at 9. Baker was advised that he would
be excluded from the list of employees to be rehired for the year
2000 and was then escorted out of the council chambers and required to
surrender his equipment to the Elkhart County Sheriff. At 6:00 p.m. that
evening, the Council convened in regular public session, during which it voted to
approve the list of Town employees to be rehired and to approve a
new interim Town Marshal.
On February 3, 2000, Baker filed suit against Middlebury alleging that the Council
had violated Indiana’s Open Door Law because it took final action in executive
session and gave incorrect notice of the subject matter of that session.
In response, on March 31, 2000, Middlebury filed a T.R.12(B)(6) motion
to dismiss the action for failure to state a claim upon which relief
can be granted. On November 27, 2000, the trial court granted Middlebury’s
motion with prejudice. Baker now appeals.
DISCUSSION AND DECISION
I. Standard of Review
In reviewing a motion to dismiss granted pursuant to T.R. 12(B)(6), our standard
of review is well settled. A T.R. 12(B)(6) motion to dismiss for
failure to state a claim upon which relief can be granted tests the
legal sufficiency of the claim, not the facts supporting it. Am. Dry
Cleaning & Laundry v. State, 725 N.E.2d 96, 98 (Ind. Ct. App. 2000).
Therefore, we view the complaint in the light most favorable to
the non-moving party, drawing every reasonable inference in favor of this party.
Id. In reviewing a ruling on a motion to dismiss, we stand
in the shoes of the trial court and must determine if the trial
court erred in its application of the law. Id. The trial
court’s grant of the motion to dismiss is proper if it is apparent
that the facts alleged in the complaint are incapable of supporting relief under
any set of circumstances. Id. Furthermore, in determining whether any facts
will support the claim, we look only to the complaint and may not
resort to any other evidence in the record. Id.
II. Baker’s Claims
A. Violation of the Open Door Law
Baker first contends that the trial court erred in dismissing his complaint pursuant
to T.R. 12(B)(6) for failure to state a claim upon which relief can
be granted. Specifically, Baker asserts that the Council’s compilation of the list
of employees to be rehired for the year 2000 in executive session, and
his exclusion from that list, constituted impermissible final action in violation of provision
I.C. § 5-14-1.5-6.1(c) of the Open Door Law.
In addressing Baker’s contention, we note that the legislature passed the Indiana Open
Door Law in 1977 with the intention that the business of the State
of Indiana and its political subdivisions be conducted openly so that the general
public may be fully informed. I.C. § 5-14-1.5-1.
We are required to liberally construe the statute in order to give effect
to the legislature’s intention. Id. Accordingly, “all doubts must
be resolved in favor of requiring a public meeting and all exceptions to
the rule requiring open meetings must be narrowly construed.” Evansville Courier v.
Willner, 553 N.E.2d 1386, 1388 (Ind. Ct. App. 1990), vacated in part, adopted
in part by 563 N.E.2d 1269 (Ind. 1990).
Moreover, where the words of the statute are clear and unambiguous, they will
be given their plain, ordinary, and unbridled meaning. Common Council of the
City of Peru v. Peru Daily Tribune, 440 N.E.2d 726, 729 (Ind. Ct.
App. 1982). It can be presumed that the legislature intended its language
to be applied in a logical manner consistent with the underlying policies and
goals of the statute. Id. Further, when certain items or
words are specified or enumerated in the statute, by implication other items or
words not so specified are excluded. Id. Finally, exceptions to a
statute and its operation should be strictly construed by placing the burden of
proving the exception upon the party claiming it. Id.
The Open Door Law permits executive sessions in certain specified instances. An
“executive session” is defined as “[a] meeting from which the public is excluded,
except the governing body[
See footnote
] may admit those persons necessary to carry out its
purpose.” I.C. § 5-14-1.5-2(f). A “meeting” is defined as “[a]
gathering of a majority of the governing body of a public agency for
the purpose of taking official action upon public business.” I.C. §
5-14-1.5-2(c). “Official action” means to:
(1) receive information;
(2) deliberate;
(3) make recommendations;
(4) establish policy;
(5) make decisions; or
(6) take final action.
I.C. § 5-14-1.5-2(d). The only official action that cannot take place
in executive session is a final action, which must take place at a
meeting open to the public. I.C. § 5-14-1.5-6.1(c). A “final action”
is defined as “[a] vote by the governing body on any motion, proposal,
resolution, rule, regulation, ordinance, or order.” I.C. § 5-14-1.5-2(g).
Ind.Code § 5-14-1.5-6.1(b) enumerates eleven instances where a public body may meet in
executive session. In this instance, the executive session was held under the
exception permitting discussion of “a job performance evaluation of individual employees.” I.C.
§ 5-14-1.5-6.1(b)(8). Baker asserts that Middlebury went beyond the scope of
this exception for employee evaluations and took impermissible final action by compiling the
list of employees to be rehired and excluding him from that list.
However, the Open Door Law does not prohibit Middlebury from receiving information, making
recommendations, establishing policy, and making decisions in executive session. See I.C. §
5-14-1.5(2)(d) (emphasis supplied); I.C. § 5-14-1.5-6.1(c). In this instance, Middlebury made a
decision not to include Baker on the list of rehires to be presented
at the open meeting. This decision not to rehire Baker was
subsequently implemented at the public session by vote approving the list of rehires,
of which Baker was not included, and by approving a new interim marshal.
See footnote
“Final action,” by definition, is “[a]
vote by the governing
body on any motion, proposal, . . . or order.” I.C. §
5-14-1.5-2(g) (emphasis supplied). Because words in statutes are given their plain
and ordinary meaning, see Peru, 440 N.E.2d at 729, the Council’s “final action”
on the issue of which employees would be rehired consisted of its vote
at the public meeting, not its compilation of the rehire list in executive
session reflecting its decision on what final action should be taken.
Baker relies upon this court’s opinion in Evansville Courier, 553 N.E.2d at 1389,
See footnote
for the proposition that the Council’s acts in executive session constituted final action
according to the statute. In
Evansville Courier, two County Commissioners met
privately to discuss appointees for the position of superintendent. Id. at 1387.
They then announced and introduced their selected appointee, Riney, at a press
conference before the regular public meeting. Id. Later the same day,
at the regular public meeting:
Without having discussed the matter during the meeting and without having taken a
roll call vote, [the two Commissioners] announced Riney was the Commissioners’ choice to
fill the Superintendent position. [One of the Commissioners] also read aloud from
a standard employment change form, listing Riney’s appointment, his address, and his salary.
Then [the two Commissioners] signed the employment change form and gave it
to the Secretary of the County Commission to become part of the Commission’s
official minutes.
Id. This court determined that the Commissioners’ private meetings to discuss the
appointees were not political caucuses exempt from the Open Door Law, and, therefore,
the meetings were required to be open to the public or to be
scheduled in advance as executive sessions with notice given to the public.
Id. at 1390. Thus, the Commissioners’ meetings violated the Open Door Law.
In addition, this court addressed whether the action taken by the Commissioners at
the regular public meeting constituted “final action” for appointing Riney as Superintendent in
the absence of an actual vote. This court held that the totality
of the Commissioners’ acts in public session constituted “a public vote” and “final
action,” but that appropriate final action cannot cure an earlier violation of the
Open Door Law. Id. at 1390-91. Thus, Evansville Courier addressed the
legality of the Commissioners’ private meetings regarding hiring the appointment of a new
superintendent and whether acts in public session can constitute a vote in the
absence of a formal “vote taken by motion, second of motion or roll
call vote.” Id. Evansville Courier does not stand for the proposition
that if a governing body conducts a properly noticed executive session, it cannot
have discussions and make decisions short of taking a vote.
In the case at bar, the Council’s discussion was held in a noticed
executive session, the Council made decisions in that session as it is authorized
to do by statute, and it instituted its decisions by an actual vote
at the subsequent public session. There were no unauthorized private meetings
or public announcements prior to the public session, and the list of employees
to be rehired remained subject to public scrutiny and to final approval in
the subsequent open meeting. Thus, our determination that the Council in this
case did not act in violation of the Open Door Law is not
altered by this court’s opinion in Evansville Courier.
Our determination that it was appropriate for the Council to compile its list
of rehires in private session, rather than in public, also comports with the
guiding principles of the statute and with public policy protecting the privacy rights
of individuals with respect to sensitive personnel matters. Specifically, private discussion
of an employee’s job performance evaluation does not significantly prevent or impair the
public’s knowledge or understanding of the people’s business, and it is in the
public interest to promote efficient personnel management and maintain employee morale. Furthermore,
permitting employee evaluations to take place in private session prevents the employee from
experiencing public embarrassment related to the critique of his or her work performance
and avoids needless injury to the employee’s reputation. While there are no
Indiana cases discussing the bases for the “employee evaluation” exception to Indiana’s Open
Door Law, other jurisdictions have found similar bases for exceptions to their respective
open door laws for personnel-related matters. See, e.g., Doherty v. Sch. Comm.
of Boston, 436 N.E.2d 1223, 1226 (Mass. 1982) (acknowledging that disciplinary action against
public employees was expressly excepted from the State’s open meeting law to protect
employees’ reputation, effectuate good personnel management, and maintain employee morale); Kansas v. Bd.
of Educ., 764 P.2d 459, 461 (Kan. Ct. App. 1988) (noting that the
suggested purpose of excepting personnel matters from the Kansas Open Meetings Act is
“to protect privacy rights of employees, save personal reputations, and encourage qualified people
to remain in government employ”); Meyer v. Bd. of Regents, 510 N.W.2d 450,
454 (Neb. App. 1993) (stating that the “Nebraska public meeting law reflects the
Legislature’s judgment of the appropriate balance between the public interest in open discussion
of governmental issues and the rights of individuals, such as state employees, to
have their [work] performance . . . considered in private” and to avoid
injury to the individual’s reputation).
In this instance, whether an employee was to be rehired depended in large
part upon the quality of that employee’s work performance.
Therefore, compilation of the rehire list necessarily involved some discussion of whether the
employees under consideration had met the requisite work performance standard to merit being
rehired. Forcing the Council to compile this list in public would run
the risk of exposing personal employee information to the public. While
we are required to liberally construe the Open Door statute to give effect
to the legislature’s intention that the business of government be conducted publicly, see
I.C. § 5-14-1.5-1, we should also give deference to the legislature’s determination that
public discussion of an employee’s job performance does not so advance the goal
of open government that it warrants encroaching upon the privacy rights of individual
employees. Thus, we conclude that the Council’s act of compiling the rehire
list in executive session, and excluding Baker from that list, was appropriate according
to both the language and goals of the statute and did not constitute
impermissible final action.
Baker also contends that Middlebury violated the Open Door Law by giving incorrect
notice of the subject matter of the executive session by posting the wrong
subsection of the statute. I.C. § 5-14-1.5-6.1(d) provides:
Public notice of executive session must state the subject matter by specific reference
to the enumerated instance or instances for which executive sessions may be held
under subsection (b).
As previously mentioned, Middlebury noticed the executive session under I.C. § 5-14-1.5-6.1(b)(8), which
provides that executive sessions may be held “to discuss a job performance evaluation
of individual employees.” According to Baker, the actual purpose of the executive
session was to discuss his continued status as an employee. Therefore, he
asserts that Middlebury should have noticed the meeting under I.C. § 5-14-1.5-6.1(b)(5), which
permits an executive session:
With respect to any individual over whom the governing body has jurisdiction:
(A) to receive information concerning the individual’s misconduct; and
(B) to discuss, before a determination, the individual’s status as an employee, a
student, or an independent contractor who is a physician.
(Emphasis supplied).
According to Baker, if the executive session had been conducted pursuant to I.C.
§ 5-14.1-1.5-6.1(b)(5), Middlebury would not have been permitted to come to a final
decision not to rehire him because this provision provides only for discussion “before
a determination, of the individual’s status as an employee.” (Emphasis supplied). Moreover,
Baker asserts that the Council misled the public by noticing the incorrect subsection
of the statute.
We note that subsection (b)(5) is written in the conjunctive. Therefore,
in order for this subsection to apply, the Council must have met to
receive information about Baker’s misconduct and to discuss his employment status. However,
while Baker asserts in his complaint and brief that the Council actually discussed
his status as an employee, he fails to make a similar assertion that
the Council received information regarding any misconduct on his part.
Specifically, Baker states that the Council decided not to rehire him because of
“problems with the police department,” but he does not suggest in his complaint,
legal memorandum, or brief, that these “problems” were related to any reported misconduct
or
that the Council alleged that he engaged in misconduct.
Accordingly, the allegations in his complaint are incapable of supporting his claim
that Middlebury gave improper notice of the subject matter of its executive session.
See Am. Dry Cleaning, 725 N.E.2d at 98.
See footnote
B. Dismissal “With Prejudice”
Finally, Baker contends that the trial court committed a procedural error in dismissing
his complaint “with prejudice,” and that he should have been allowed to amend
his complaint as a matter of right. T.R. 12 provides in relevant
part that “[w]hen a motion to dismiss is sustained for failure to state
a claim under subdivision (B)(6) of this rule the pleading may be amended
once as of right.” T.R. 12(B). “Accordingly, a T.R.
12(B)(6) dismissal is without prejudice, since the complaining party remains able to file
an amended complaint within the parameters of the rule.” Platt v. State,
664 N.E.2d 357, 361 (Ind. Ct. App. 1996), trans. denied. Thus, the
trial court erred in dismissing Baker’s complaint “with prejudice.”
However, Baker has not shown on appeal how he would have amended his
complaint to avoid T.R.12(B)(6) dismissal. Just as an offer of proof allows
this court to determine the admissibility of evidence and the potential for prejudice
if it is excluded, we likewise need specific information as to how Baker
would have amended his complaint to make a rational assessment of whether he
was prejudiced by the trial court’s ruling. As Baker has not demonstrated
prejudice, we must conclude that the trial court’s error was harmless.
See footnote
Judgment affirmed.
BAILEY, J., and MATHIAS, J., concur.
Footnote: A “governing body” means, among other things, two or more
individuals who are a public agency that is a council and which takes
official action on public business. I.C. § 5-14-1.5-2(b)(1). Neither party disputes
that the Council is a governing body under the Open Door Law.
Footnote: The minutes of the public session held on January 4,
2000, reflect that:
Council was given a listing of Town Employees to be hired. Gregg
Fore ask’s [sic] for motion to hire Town Employees on the list for
the year 2000. Jim Riegsecker moves to accept motion, Jim Miller, seconded,
Council approves the hiring of Town Employees so listed.
. . . .
Gregg Fore stated that Town Marshal Robert Baker was not included in the
list of employees hired for the year 2000.
Jim Riegsecker made a motion to approve Michael Hutchison as interm [sic] Marshal.
Seconded by Ruth Eash, motion carried.
R. at 36-38.
Footnote:
Our Supreme Court subsequently granted transfer in this case and
adopted this court’s opinion in part and vacated it in part. See
Evansville Courier v. Willner, 563 N.E.2d 1269 (Ind. 1990). Specifically, our Supreme
Court wrote to clarify when a caucus is transformed into a meeting subject
to full public scrutiny, but left this court’s holdings intact.
Footnote:
In his reply brief, Baker also argues that, “[A]s a
public officer, he could not be the subject of the notice given or
discharged in executive session.” Appellant’s reply brief at 22-33. Baker failed
to raise this argument before the trial court or in his original appellant’s
brief. A reply brief only enables the appellant to respond to the
appellee’s brief and a party may not assert new issues therein.
Ind.Appellate Rule 8.3(C);
Crist v. K-Mart Corp., 653 N.E.2d 140, 144 (Ind. Ct.
App. 1995).
Footnote:
Had Baker shown prejudice, the proper remedy in this instance
would have been to remand to the trial court to allow him to
amend his complaint.
See Browning v. Walters, 620 N.E.2d 28, 33
(Ind. Ct. App. 1993) On petition for rehearing, this court addressed the situation
where the trial court granted defendant’s T.R.12(B)(6) motion to dismiss “with prejudice.”
Id. We concluded that the trial court properly granted the motion but
should have allowed the plaintiff ten days to amend his complaint. Id.
Accordingly, we remanded the case to the trial court to allow plaintiff
ten days to exercise his right to amend his complaint. Id.
Middlebury cites Dixon v. Siwy, 661 N.E.2d 600, 605 n.8 (Ind. Ct.
App. 1996), Platt v. State, 664 N.E.2d 357, 361 (Ind. Ct. App. 1996),
trans. denied, and Parrett v. Lebamoff, 383 N.E.2d 1107, 1109 (Ind. Ct. App.
1979), for the proposition that a plaintiff waives his right to amend his
complaint by proceeding directly to appeal. However, those cases are distinguishable from
the case at bar inasmuch as they do not address the appropriate remedy
when a trial court dismisses the complaint “with prejudice,” seemingly foreclosing the plaintiff’s
automatic right to amend.