ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
FRANK C. CAPOZZA PATRICK BLANKENSHIP
Indianapolis, Indiana Nichols Wallsmith & Weaver
DALE J. STARKES
COURT OF APPEALS OF INDIANA
DALE HIERLMEIER, )
vs. ) No. 75A03-9911-CV-406
NORTH JUDSON-SAN PIERRE )
BOARD OF SCHOOL TRUSTEES, )
APPEAL FROM THE STARKE CIRCUIT COURT
The Honorable Robert O. Bowen, Special Judge
Cause No. 75C01-9801-CP-017
July 5, 2000
OPINION - FOR PUBLICATION
SHARPNACK, Chief Judge
Dale Hierlmeier appeals the trial court's order affirming the decision of the North
Judson-San Pierre Board of School Trustees (School Board) to cancel Hierlmeiers teaching contract.
Hierlmeier raises the following issues, which we restate as:
whether the School Board violated Ind. Code § 20-6.1-4-11(a)(A)(9) when it did not
vote on whether to cancel Hierlmeiers teaching contract on the same day that
his hearing was held;
whether a letter received by the School Board from the superintendent after Hierlmeiers
hearing constituted improper additional ex parte evidence;
whether the School Board complied with Ind. Code § 20-6.1-4-11(a)(6)(A) in notifying Hierlmeier
at his hearing of the reasons for the proposed cancellation of his contract;
whether the School Boards decision to terminate Hierlmeier was supported by substantial evidence.
The relevant facts follow. Hierlmeier had been employed as permanent teacher by
the North Judson-San Pierre School Corporation for approximately twenty-two years when, in December
1996, the school guidance director notified the principal that one of Hierlmeiers students
had reported several incidents of alleged inappropriate behavior by Hierlmeier. On January
7, 1997, the principal sent a letter to Hierlmeier setting forth the students
complaints. Thereafter, Hierlmeier was notified that the School Board had proposed to
cancel his contract. Following a hearing, the School Board cancelled Hierlmeiers teaching
contract. On January 13, 1998, Hierlmeier filed a complaint in the trial
court seeking reinstatement. The trial court held a hearing to review the
School Boards proceedings and affirmed the School Boards decision to cancel Hierlmeiers contract,
concluding that the School Board followed the proper procedures in canceling Hierlmeiers contract
and that its decision to do so was supported by substantial evidence.
Additional facts will be provided herein as necessary.
In reviewing a school board decision, we stand in the same position as
does the trial court. Hinkle v. Garrett-Keyser-Butler School Dist., 567 N.E.2d 1173,
1176 (Ind. Ct. App. 1991), trans. denied. Thus, our review is limited
to determining whether the board followed the proper procedures and whether there is
substantial evidence to support the board's decision. Id. Under this standard
of review we may not review the weight and effect of the evidence
upon which the administrative decision is based. Id.
The first issue is whether the School Board violated Ind. Code § 20-6.1-4-11(a)(9)
when it did not vote on whether to cancel Hierlmeiers teaching contract on
the same day that his hearing was held.
See footnote That section of the
statute provides in relevant part:
the governing body of the school corporation may cancel an indefinite contract with
a teacher by a majority vote evidenced by a signed statement in the
minutes of the board; the decision of the governing board is final.
The vote to cancel a contract described in subdivision (9) must be taken
by the governing body on the date and at the time and place
specified in subdivision (1).
I.C. § 20-6.1-4-11(a)(9). Subdivision (1) provides as follows:
the teacher shall be notified in writing of the date, time, and place
for the consideration by the school corporation of the cancellation of the contract;
this notification must occur not more than forty (40) days nor less than
thirty (30) days before the consideration.
I.C. § 20-6.1-4-11(a)(1).
Hierlmeier argues that the vote on whether to cancel his contract should have
been taken immediately following his hearing, which was held on March 11, 1997.
He asserts that instead the vote was improperly taken on March 17,
1997.See footnote In essence, Hierlmeier seems to assert that the date of consideration
and hearing date must be the same date. The School Board contends
that it could not make its decision until March 17, 1997, because that
was the date that it had previously set for consideration of cancellation of
Hierlmeiers contract and an earlier decision would have been in contravention of Ind.
Code § 20-6.1-4-11.
The record does not contain the original notice setting the date, time, and
place for the consideration. North Judson asserts that the date of consideration
was March 17, 1997. Hierlmeier does not deny that nor contend that
the date was any other date than March 17, 1997. Moreover, Hierlmeier
does not contend that March 11, 1997, was the date set for consideration.
Hierlmeier did not assert at the hearing, at the trial court, or
here that March 17, 1997, was not the date set for consideration.
He also never denied that he received the notice of consideration. Rather,
Hierlmeier contends that the vote had to be taken at the hearing.
That is not what the statute requires.
See I.C. § 20-6.1-4-11(a)(9) &
We further note that at the conclusion of his hearing, Hierlmeier did not
request that the School Board vote at that time nor did he object
when it adjourned the meeting until March 17, 1997. A teacher cannot
predicate error on the delay to which he agreed. Steinway v. Board
of Sch. Trustees., 486 N.E.2d 1045, 1047 (Ind. Ct. App. 1985), rehg denied,
trans. denied. Therefore, implicit in his failure to object or request a
vote is his agreement that March 17, 1997, was an acceptable date for
the School Board to vote. See id. Consequently, he cannot now
predicate error on a vote allegedly taken on March 17, 1997.
The next issue is whether a letter received by the School Board from
the superintendent after Hierlmeiers hearing constituted improper additional ex parte evidence. Hierlmeier
argues that, in deciding whether to terminate his employment, the School Board improperly
considered a letter dated March 14, 1997, that was written by the school
superintendent. Specifically, Hierlmeier contends that the letter constituted improper additional evidence received
by the School Board ex parte after his hearing.
Indiana Code § 20-6.1-4-11(a)(7) provides as follows:
a contract may not be canceled until:
the date set for consideration of the cancellation of the contract;
(B) after a hearing is held, if a hearing is requested by the
(C) the superintendent has given his recommendations on the contract; on five
(5) days written notice to him by the school corporation, the superintendent shall
present his recommendation on each contract, except on a superintendents contract
I.C. § 20-6.1-4-11(a)(7) (emphasis added). It is clear from a review of
the letter at issue that it was written in response to a request
made by the School Board on March 12, 1997, that the school superintendent
set forth her recommendations regarding Hierlmeiers teaching contract. This letter from the
superintendent is clearly required by Ind. Code § 20-6.1-11(a)(7) before a permanent or
semi-permanent teachers contract can be canceled. See I.C. § 20-6.1-11(a)(7); Myers v.
Greater Clark County Sch. Corp., 464 N.E.2d 1323, 1327 (Ind. Ct. App. 1984).
Due process would demand that the letter should not be written until
after the teachers hearing has occurred. Having a hearing before the superintendent
makes her recommendation allows her to hear evidence presented at the hearing which
better allows the superintendent to render a thoughtful and well reasoned recommendation.
In addition, having the superintendents recommendation given after the hearing acts to protect
the due process rights of the teacher by ensuring that the teacher will
have an opportunity to present evidence and arguments in his defense before the
superintendent makes her recommendation.
Hierlmeier does not support his argument that the letter contains additional evidence by
telling us specifically what evidence it contains that was not previously presented during
the hearing. Our review of the letter indicates that it was based
purely upon the information presented at the hearing. As such, it does
not contain any additional evidence as asserted by Hierlmeier. The superintendent states
in the letter that her recommendation is based on the testimony that I
heard at the hearing and the documentation provided by [the attorneys for Hierlmeier
and the School Board]. Record, p. 506. We conclude that this
letter was no more than the recommendation required pursuant to Ind. Code §
20-6.1-4-11(a)(7)(C). Therefore, the School Board could have properly considered it in making
its final decision to cancel Hierlmeiers contract. See I. C. § 20-6.1-4-11(a)(7).
The next issue is whether the School Board complied with Ind. Code §
20-6.1-4-11(a)(6)(A) in notifying Hierlmeier at his hearing of the reasons for the proposed
cancellation of his contract. Hierlmeier argues that he was not given a
complete statement of the reasons for the termination of his contract. He
argues that the School Board failed to comply with Ind. Code § 20-6.1-4-11(a)(6)(A),
which provides in relevant part:
at the hearing, the teacher is entitled:
(A) to a full statement of the reasons for the proposed cancellation of
I.C. § 20-6.1-4-11 (a)(6)(A).
Hierlmeier asserts that the record of his hearing before the School Board was
devoid of a complete statement of the charges against him that would justify
the termination of his employment contract. Appellants brief, p. 13. However,
during the hearing, the School Boards attorney outlined in his opening argument the
reasons for canceling Hierlmeiers contract. The School Boards attorney covered Hierlmeiers alleged
inappropriate conduct, which included Hierlmeiers presentation in front of the class of a
morbid[,] grotesque[,] and offensive picture to one of his students; Hierlmeiers inappropriate comments
to one of his female students; and his giving of gifts to students
that were inappropriate due to the student-teacher relationship and the age difference between
the student and the teacher. Record, p. 143. The School Boards
counsel then stated that this inappropriate conduct violated school and corporate policies regarding
sexual harassment and teachers conduct toward students including the giving of gifts.
The above evidence clearly shows that during his hearing Hierlmeier was given a
full statement of the School Boards proposed reasons for canceling his contract.
See I.C. § 20-6.1-4-11(a)(6)(A). Therefore, the School Board complied with the statute.
The final issue is whether the School Boards decision to terminate Hierlmeier was
supported by substantial evidence. As we mentioned above, when reviewing whether there
is substantial evidence to support the school boards decision, we may not review
the weight and effect of the evidence upon which the administrative decision is
based. Hinkle, 567 N.E.2d at 1176. This court may vacate a
school boards decision only if the evidence, when viewed as a whole, demonstrates
that the boards decision is clearly erroneous. Aigner v. Cass Sch. Township,
577 N.E.2d 983, 985 (Ind. Ct. App. 1991), rehg denied, trans. denied.
Under Indiana law, the cancellation of a teachers employment contract must be substantiated
by evidence presented at a hearing. Whitney v. Board of School Trustees,
416 N.E.2d 1289, 1294 (Ind. Ct. App. 1981). Requiring a school board
to present at a hearing all of the evidence on which it bases
its decision affords the teacher the opportunity to challenge the school board's findings
and prevents the school board from judging the case before hearing all of
the evidence. Id.
Hierlmeier argues that the only evidence presented by the School Board that supports
its decision constitutes hearsay. Specifically, he asserts that the testimony of school
officials regarding what the students told them and the affidavits of students are
inadmissible hearsay. However, hearsay is admissible in a school board hearing.
Hinkle, 567 N.E.2d at 1178. The interest to be protected, that of
avoiding the likelihood that students would have to testify on such matters in
the presence of their peers or teachers, is compelling. Id. Nonetheless,
the admission of hearsay evidence in such a proceeding is not without limitation.
Id. If hearsay evidence is properly objected to and does not
fall within a recognized exception to the hearsay rule, the resulting order may
not be based solely upon the hearsay evidence. Id. There must
be some corroborative evidence to support a school boards order when hearsay has
been admitted over objection. Id. If not objected to, the
hearsay evidence may form the basis for an order. Id.
In order to cancel a teachers contract, the school board must demonstrate that
the teachers conduct falls within the reasons enumerated in Ind. Code § 20-6.1-4-10.
In Hierlmeiers case, the School Board cancelled Hierlmeiers contract for good and
just cause which is a permissible ground for doing so pursuant to Ind.
Code § 20-6.1-4-10(7). Therefore, assuming that Hierlmeier properly objected to the affidavits
of the students and the testimony by school officials as to what the
students told them, we look to whether there was admissible evidence presented at
the hearing to corroborate the School Boards findings that there was good and
just cause to cancel Hierlmeiers contract.
The School Board made the following findings that were supported by Hierlmeiers own
testimony, which was admissible evidence, when it concluded that Hierlmeiers contract should be
canceled: that Hierlmeier gave C.R., one of his students, a cookie during class
when no other students were given gifts; that during Hierlmeiers hunter education class
a deer mounting was placed on C.R.s desk with a sign on it
that said [C.R.] the friendly deer; that during the semester a student
wrote Dale + [C.R.] or Dale loves [C.R.] on the blackboard and it
remained there for one to two days; that during a conversation regarding C.R.s
jacket, Hierlmeier commented that it was not laying properly because she was maturing;
that Hierlmeier made several comments on one of C.R.s quizzes which were not
related to her score; that Hierlmeier gave C.R. a $32.00 container of perfume
as a gift right before Christmas break that he wrapped in several boxes
and she chose to open in front of the class;
See footnote that C.R. later
gave the gift to a guidance counselor;See footnote that C.R. was teased in relation
to some of the incidents described above; that Hierlmeier presented another one of
his students, L.M., with a copy of a photograph of an extremely obese
woman in a swim suit whereon he wrote,
[L.M.] back in 1996, [L.M.] was slim, trim, and unbelievably cute; however,
after eating tons of sugar-covered apples for her entire life, [L.M.] has ballooned
up to an amazing 2,006 pounds, ironicly [sic] in the year 2006.
Space age medicines, modern scientific diet plans, and even [L.M.s] high tech health
teacher Coach Herli - Bird back in 96 could not influence
[L.M.s] craving for sugar and apples. Please remember this dramatic representation whenever
you get the craving for something sweet;
and that Hierlmeier asked another one of his students, D.S., for permission to
sign her yearbook and he used an entire page to sign it.See footnote
Record, pp. 508-510.
Hierlmeier acknowledged during his testimony that he may have embarrassed C.R. on at
least one occasion and that it was possible that other students might have
teased C.R. about the events in question. One of C.R.s friends, K.P.,
testified that C.R. was teased in the hallways by other students in a
way that was not flattering regarding the deer head and perfume incidents.
Hierlmeier also admitted that a teenager might be offended by the photo of
the obese woman. During course of Hierlmeiers employment, he was warned on
more than one occasion that he should not act in an inappropriate manner
toward students.See footnote The above testimony by Hierlmeier that he committed the acts
in question is nonhearsay evidence to support the School Boards findings.
Based upon the above evidence the School Board concluded that Hierlmeier violated the
School Boards policy regarding sexual harassment by creating a hostile learning environment for
C.R. and L.M. It also concluded that Hierlmeiers conduct in regard to
D.S.s yearbook and with regard to C.R. were both inappropriate. In addition,
the School Board concluded that Hierlmeier violated its policy on gifts to students.See footnote
The School Board determined that its findings and conclusions constituted good and
just cause to terminate Hierlmeiers indefinite teaching contract.See footnote
We conclude that the above evidence, viewed as a whole, shows good and
just cause for the cancellation of Hierlmeiers contract.
See I.C. § 20-6.1-4-10;
See e.g., Aigner, 577 N.E.2d at 985. Therefore, the School Boards decision
survives the substantial evidence test. See Aigner, 577 N.E.2d at 985.
The School Boards decision is not clearly erroneous. See id.
For the foregoing reasons, the judgment of the trial court is affirmed.
Bailey, J. concurs.
Robb, J. concurs in result.
Indiana Code § 20-6.1-4-11 provides the procedures that must be followed
when canceling an indefinite teaching contract.
Footnote: Although our review of the record reveals no evidence to confirm
when the vote was taken, the School Board concedes that it was taken
on March 17, 1997.
Footnote: In passing, Hierlmeier seems to claim that the School Board improperly
voted on whether to cancel his teaching contract during an executive session instead
of during an open session. However, Hierlmeier makes no argument to support
this vague contention. Accordingly, any contention that the School Board improperly voted
during an executive session is waived.
See App. R. 8.3(A)(7) (Each error
that appellant intends to raise on appeal shall be set forth specifically and
followed by the argument applicable thereto).
In addition, Hierlmeier contends that the two written statements provided to
him before the hearing notifying him of the grounds for his dismissal were
vague and inadequate and were not made part of the record at the
hearing. One is a letter written directly to Hierlmeier from the superintendent
and the other is a letter from the School Boards counsel to Hierlmeiers
representative from the Indiana State Teachers Association. He appears to point this
out in support of his argument that the School Board did not properly
follow Ind. Code § 20-6.1-4-11(a)(6)(A). However, Ind. Code § 20-6.1-4-11(a)(6)(A) deals only
with what the teacher is entitled to at the hearing. Id. (emphasis
added). The content of the letters received by Hierlmeier before the hearing
is irrelevant to what occurred during the hearing. See id.
Although not stated in his brief, Hierlmeier could be alluding to an argument
that Ind. Code § 20-6.1-4-11(a)(2) was not met. That part of the
statute provides that the teacher shall be furnished, within five (5) days after
a written request, a written statement of the reasons for the consideration.
I.C. § 20-6.1-4-11(a)(2). However, Hierlmeier admits that this issue was not raised
to the trial court, and he has not directed us to any place
where this issue was raised at the hearing. In addition, he has
not made an argument or supported it with authorities based upon Ind. Code
§ 20-6.1-4-11(a)(2). Therefore, Hierlmeier has waived this issue for our review.
See National Rural Utilities Co-op. Finance Corp. v. Public Service Com'n of Indiana,
552 N.E.2d 23, 28 (Ind. 1990) (holding that appellants were precluded from claiming
entitlement to a statute's protections because they waived the issue by not raising
it before the commission); See also Hale, 454 N.E.2d at 885 n.1.
On the same day, Hierlmeier gave the other students in the
class a chocolate éclair. Hierlmeier testified that he gave C.R. the cologne
as a thank you for her taking attendance during the year. He
also testified that as a health teacher he did not want to give
her candy or cookies. Hierlmeier admitted that although other students had taken
attendance for him, he had never given any other student perfume for doing
so in the past.
Footnote: This finding is supported by the school guidance directors testimony.
Footnote: Exhibit A, D.S.s yearbook, which the School Board relied upon in
making its decision, revealed that in the yearbook Hierlmeier referred to D.S. as
Party Girl, [D.S.] Weener, and [D.S.] the Deer. Record, p. 454. [D.S.]
the Deer, similar to [C.R.] the Friendly Deer, was the name Hierlmeier gave
D.S. from his hunter safety class.
Footnote: In 1985, Hierlmeier was warned that it was unacceptable for him
to wear short-shorts in a manner where he sat before the class and
embarrassed pupils and to use suggestive language in class, particularly language that was
offensive to female students. Record, p. 427.
Footnote: Hierlmeier argues that he was unaware of any policy prohibiting gifts
from teachers to students. We need not address this alleged error because
there is substantial evidence to support the School Boards cancellation of Hierlmeiers contract
without considering whether he violated any policy prohibiting gifts from teachers to students.
Hierlmeier argues that there was no substantial admissible evidence that his
students ever claimed that they had been sexually harassed or that his conduct
created a hostile learning environment. We need not address his issue because
there is sufficient evidence of inappropriate conduct by Hierlmeier that justified the School
Boards cancellation of his contract for good and just cause.