church church hittle antrim A 0 ll A l. A April 2, 2018 VIA EMAIL I?g?tunassiiugor Luke Britt, Public Access Counselor Indiana Government Center South 402 West Washington Street Room W470 Indianapolis, IN 46204 Re: Formal Complaints and Dear Counselor Britt: This letter serves as the response of Carmel Clay Schools t0 Formal Complaints and 39 ?led on February 20 and 26, 2018, respectively by WTHR and the Indianapolis Star (?Complainants?). Due to the similarities between the two complaints, we understand that your office has consolidated them for consideration and, accordingly, CCS provides this single response to address both. While CCS will address the substance of both complaints, it notes that both are substantially de?cient when compared to the requirements for a valid formal complaint under I.C. 5?14?5?7. As to Formal Complaint submitted by the Indianapolis Star, it is not a valid complaint for the denial of access to public records for the following reasons: A. Formal Complaint alleges only one claim: that CCS failed to provide the notice placing Dr. Wahl on administrative leave. According to the Complainant, this denial occurred on January 24, 2018. Formal Complaint was ?led on February 26, 2018, or 33 days after the denial. Indiana Code section 5?14?5?7(a) requires that a formal complaint be filed no later than 30 days after a denial of a records request. B. The remainder of Formal Complaint does not allege a denial of a request to inspect or copy records or any other basis for a complaint under 1.0. 5-14?5?6. To the contrary, the complaint notes that CCS consistently released information regarding the status of its leadership review and the status of its employees throughout that review, including providing a copy of the resignation agreements at the meeting where they were formally accepted by governing body. C. Formal Complaint 18-FC-39 claims that CCS would not answer questions after public board meetings, would not provide answers to written questions submitted by a reporter, and would not respond to the reporter?s request for comment on quotes the reporter attributed to the Public Access Counselor. None of these claims are requests for public records that would form the basis for a formal complaint under I.C. 5-14? 5?6. To assert otherwise is to suggest that all interactions between a reporter and a public agency are records requests. D. Even if the reaction or lack of response of CCS t0 the Indianapolis Star?s request for comment or questions are treated as records requests, all of the ?denials? (in the form of CCS not responding to questions or requests for comment) occurred more than 30 days prior to the ?ling of the formal complaint. Two North Ninth Street, Noblosviile, IN 46060 317.773.2190 I- 317.773.5320 mum"! A Partnership of Professional Corporations E. Formal Complaint 18-FC-39 says the ?district (sic) has ?led other records requests, including one asking for a copy of Wahl?s resignation agreement.? CCS assumes the complaint means the Indianapolis Star has ?led other records requests. Yet even the Indianapolis Star admits it was provided a ?paper copy? of the resignation agreement and, in fact, CCS provided that copy without any request being made. It is hard to see how providing a copy of a record is a denial of a request. F. Formal Complaint itself does not ask whether CCS has violated the law but instead asks the Public Access Counselor to ?investigate? whether CCS has violated the ?spirit and intent of the law.? CCS is unaware of any authority granted to the Public Access Counselor to conduct such investigations. As for Formal Complaint submitted by WTHR, CCS notes that WTHR ?led two record requests. First, on October 10, 2017, WTHR submitted a record request seeking the basis for disciplinary action involving Dr. Wahl and Ms. Middleton. Note that this request was submitted after the employees were placed on administrative leave pending a review of district leadership. WTHR never submitted any other request for information regarding disciplinary action including any request made after the resignations. The only other request WTHR made of CCS, as shown by Exhibit to its complaint, was for CCS to provide WTHR with ?copies of all records submitted ful?lling records requests from August 1, 2017.? CCS objected to this second records request as overbroad and invited WTHR to describe records it was seeking with reasonable particularity. The Of?ce of the Public Access Counselor has encouraged government agencies to work with those requesting records to attempt to reach agreement on requests that the agency believes to be overbroad. Here CCS did exactly that and also voluntarily provided WTHR the resignation agreements, personnel reports, contracts and credit card statements. WTHR never contacted CCS seeking additional information or records after January 24, 2018. Instead, it ?led this Complaint. Accordingly, the only valid issue for Formal Complaint is the alleged failure of CCS to provide a summary of the factual basis for its decision to place its employees on administrative leave pending its review of district leadership. CCS never denied second request but instead sought clari?cation of the request, which WTHR never provided. Yet allegations in its formal complaint far exceed the scope of its one ?denied? record request. The Indiana Access to Public Records Act (APRA) is not designed to regulate the day?to? day interactions between reporters and government agencies. Nor is the formal complaint process meant to be a method of policing a public agency?s decision on whether and how to answer reporters? questions or respond to their requests for comments. Further, the statutory requirements for a formal complaint were intended to have meaning and not to be ignored. While CCS will address the substance of the formal complaints, its decision to do so is not acquiescence in the failure of the Complainants to abide by the statutory conditions for submitting a proper formal complaint. On October 9, 2017, the Carmel Clay School Board of Trustees placed then Superintendent, Dr. Nicholas Wahl, on paid administrative leave pending a review of district leadership. At that meeting, CCS, voluntarily and without any request, made a public statement regarding its actions. CCS gave that statement to the media and posted it on its website. CCS Two North Ninth Street, Noblesuille. IN 46060 1? 317.773.2190 1'3177735320 a ":H'ror! 5 alriilEIVHIIj 5 A Partnership of Professional Corporations also placed former Human Resources Director, Corrine Middleton, on paid administrative leave on October 11, 2017, again pending a review of district leadership. These actions took place shortly after the Public Access Counselor issued Advisory Opinion which speci?cally stated that placing an employee on paid administrative leave is not a ?nal action under LC. The School relied on this advisory opinion to guide its actions and its response to inquiries and requests for records regarding that action. On January 12, 2018, the Carmel Clay School Board of Trustees announced that it would accept the resignation of Dr. Wahl. The Board issued a statement noting its belief that the resignation was in the best interest of the school corporation and that Dr. Wahl?s approach and leadership style was not consistent with the Board?s vision for the school district. The resignation of Ms. Middleton followed on January 22, 2018. The Board formally rati?ed and approved these resignations on January 22, 2018. While there is substantial question whether the Complainants have even made valid requests for records, they claim CCS has not complied with LC. by failing to provide ?the factual basis for a disciplinary action in which ?nal action has been taken and that resulted in the employee being suspended, demoted, or discharged.? Apparently, they believe that CCS was required to provide this factual basis for its decision to place the employees on administrative leave and also to provide some completely unde?ned information about the resignations. Under LC. in order to trigger an obligation to provide a factual basis, three things must be true: (1) ?nal action; (2) disciplinary action; and (3) an employee being suspended, demoted or discharged. Based on the language and intent of the law, CCS can demonstrate that these predicates for disclosure of a factual basis do not exist for either the decision to place the employees on administrative leave nor for the resignations. Therefore, nothing in the APRA obligated CCS to provide a factual basis for either action. Placing an Employee on Administrative Leave Does Not Require Development of a ?Factual Basis? The Public Access Counselor recently af?rmed that paid administrative leave is not a ?nal action requiring a factual basis under the APRA. In Advisory Opinion the Public Access Counselor stated, ?Placing an administrator on paid leave, while a substantive decision, is not a ?nal action as contemplated by the APRA. . . Once a decision to suspend, demote, or terminate is made, a factual basis then becomes subject to disclosure, but not before.? This opinion was issued shortly before the action of CCS placing the employees on paid administrative leave pending the review of district leadership. CCS was guided by this opinion in choosing not to answer the Indianapolis Star?s questions and requests for comments and in not providing information in response to October records request. The analysis on this issue should end there. As the opinion states quite plainly, there is no ?nal action under APRA when an employee is placed on administrative leave. The opinion is unequivocal and contains no limitation or exception. And it is hard to see how the opinion could say otherwise given the plain language of the statute. Two North Ninth Street. Noblesville, IN 46060 I 317.773.2190 317.773.5320 5 5 A Partnership of Professional Corporatlons In short, ?nal action is a necessary predicate to any obligation to disclose a factual basis and administrative leave is not a ?nal action. Further, there is no disciplinary action. A review of leadership is not discipline. Finally, there is no employee that has been ?suspended, demoted or discharged.? To claim or advise otherwise is to simply ignore the plain language of the statute. And to claim otherwise is to ignore the policy that animates the statute. The notion that the entirety of a public employee?s work life is a matter of public record that is open to examination as to every aspect at any time underlies these complaints. That is not the policy of the State of Indiana or the law as expressed by its General Assembly. The APRA provides an exemption from the disclosure of records, at the discretion of the public agency, for all personnel ?le information except for information particularly described and speci?ed in the statute. The enactment of this law is a recognition by the General Assembly that a public employee maintains substantial rights of privacy regarding his or her job performance and status. Further, the General Assembly granted public agencies the discretion to protect that privacy absent certain speci?c and de?ned statutory requirements. The Public Access Counselor has recognized this expectation of privacy for a public employee?s personnel matters. See Formal Opinion of the Public Access Counselor 17 (stating, ?The legislature, by promulgating Ind. Code 5-14- has recognized the right to privacy of public employees when it comes to personnel Further, the law allows a court to overturn the agency?s exercise of that discretion only if the person seeking disclosure shows that the denial of access is arbitrary or capricious. 1.0 5? Regarding information concerning a ?nal disciplinary action, the Indiana Court of Appeals has stated, ?Information concerning a ?nal disciplinary action might encompass the nature, extent, and general reason behind the decision to discipline or discharge a public employee, but not the intimate details of the factual investigation which forms the basis of the action.? Unincorporated Operating Div. of Indiana Newspapers, Inc. v. Trustees of Indiana Univ., 787 893, 916 (Ind. Ct. App. 2003). Nothing in the law supports any suggestion that the length of an administrative leave alters the requirements of ?nal action, disciplinary action, and the suspension, demotion or discharge of an employee. The APRA is not a personnel law, nor does it grant the Public Access Counselor authority to prescribe personnel policies or procedures for independent governmental agencies? in the guise of, for example, a suggestion that an administrative leave cannot last longer than 30 days. The Public Access Counselor should be very wary of following invitations from the media to pursue interpretations of the public records law that would impinge on the ability and discretion of public agencies to carry out their authority to manage their personnel as granted to them by the General Assembly. Not only is there no legal basis for a time limitation for administrative leaves, it makes no sense from a practical perspective. Many factors can cause an employee?s administrative leave to extend beyond thirty (30) days. In this case, calendar attributed to the length of the employee?s administrative leave. Between fall break, Thanksgiving Break, and winter break, CCS was out of session for nearly three weeks. Further the Board is comprised of ?ve individuals, all of whom have full?time jobs or responsibilities outside of their commitment to the Board. The situation at issue was further unique in that two of primary administrators were the employees on paid administrative leave. CCS admittedly dedicated time to making sure that its other leadership and internal organization was maintaining and advancing its ultimate mission of educating CCS students with as little disruption as possible. Twa North Ninth Street, Noblesville, IN 46060 i' 317.773.2190 ii 317.773.5320 a 5 I'lfliilli? 5 ill'lf'i! 5 5 5 A Partnership of Professional Corporations In addition to being neither legal nor practical, inventing a deadline for administrative leave could also cause poor personnel decisions. Rushed decisions or decisions based on inconclusive information could result in public employees being erroneously dismissed or retained when additional time for further inquiry would have absolved them. Public entities facing arbitrary deadlines may also think they are obliged to make decisions prematurely and then release information regarding those decisions that could unfairly damage employee relations, an employee?s reputation, or the community?s trust in the employee. Even if additional review concludes no concerns or wrongdoing on an employee?s part, returning the employee to work may prove dif?cult. Particularly in a school setting, certain allegations of wrongdoing even if ultimately disproven could irreparably damage an employee. While this was not the case here, there exist situations where other agencies (such as law enforcement or the Department of Child Services) are conducting investigations into the employee. These actions by other agencies may inhibit a school?s ability to take ?nal action regarding an employee on paid administrative leave within an arbitrary timeline. For example, schools must work in concert with law enforcement on student and employment matters. Otherwise, they may inadvertently frustrate the prosecution of crimes. See Garrity v. State of New Jersey, 385 US. 493 (1967) (holding the Fourteenth Amendment prohibited subsequent prosecution of police of?cers forced to incriminate themselves rather than lose their jobs); see also D.Z. v. State, No. 2018 WL 1004463 (Ind. Ct. App. Feb. 22, 2018) (holding a student?s admission to a high school assistant principal could not be used in delinquency proceedings because the student had not received Miranda warnings). For the above reasons applicable to CCS and public entities in general, the Public Access Counselor should continue to follow the plain language and intent of the statute and af?rm his recent opinion in Advisory Opinion that paid administrative leave, no matter the length, does not constitute ?nal action, a disciplinary action, or result in an employee being suspended, demoted or discharged. Consequently, placing an employee on administrative leave cannot trigger an obligation to provide a factual basis pursuant to I.C. under the plain language of the law, the Counselor?s prior interpretation of the law, the policy that recognizes an employee?s privacy rights, and the discretion of the public agency to release personnel ?le information.1 Resignations Do Not Trigger Development of a ?Factual Basis? A public employee?s resignation does not require a public agency to provide any factual basis regarding that resignation. The plain language of the APRA draws a sharp line between a resignation and a discharge. This distinction was recognized by the Public Access Counselor at least as early as 2012. See Formal Opinion of the Public Access Counselor (stating ?Had the Police Chief not rescinded his resignation or had the Mayor not accepted the rescission, the issues regarding LC. would not be applicable as a suspension, 1 WTHR cites disciplinary policy, which includes an option of administrative leave for final action involving the discipline of an employee, as support for its claim. But in the absence of either ?nal action or disciplinary action, policy has no relevance here. Two North Ninth Street, Noblesville, IN 46060 317.773.2190 317.773.5320 a 'I'll?l?Hl A Partnership of Professional Corporations demotion, or discharge would not have occurred?); See also Formal Opinions of the Public Access Counselor and This distinction between resignation and discharge continues. The Public Access Counselor consistently interprets I.C. as recognizing that resignation is a voluntary act of the employee while termination/ discharge is the ?nal action by the public agency employer. See Formal Opinions of the Public Access Counselor and C?1o. The General Assembly has not changed the law since these opinions. In fact, the General Assembly has explicitly acknowledged the difference between an agreement to end a superintendent?s employment (such as the resignation agreement here) and a termination in LG. 20-28-8?7. The only available means for a school and superintendent to separate include i) mutual agreement; ii) termination for cause; or notice prior to expiration of the contract by the school or superintendent. Notably, the termination for cause involves an opportunity for a hearing before the Board, which also provides a foundation for the development of a factual basis for the Board?s final action. The statute authorizing mutual agreement for ending a superintendent?s employment requires nothing other than the agreement of the parties; there is no requirement that either party supply any basis for their decision to enter the agreement and there is no basis for engrafting such a requirement into the APRA. The statutory requirement for disclosure of a factual basis after ?nal action has been taken and disciplinary action of suspension, demotion or discharge has occurred makes sense. In that case, the public agency has taken ?nal action that would have been proceeded by some level of statutory or constitutional due process in which a factual basis could have been established after the opportunity for the employee to be heard regarding the basis and the appropriateness of the disciplinary action. In this matter, both Dr. Wahl and Ms. Middleton signed resignation agreements stating that their resignations were voluntary. Nothing in Indiana law requires either employee to provide CCS with a reason for their resignation. They made the decision to resign and the reason for their decision rests within their knowledge, not within the knowledge of CCS. If CCS was required to conjure up a factual basis to explain why the employees chose to resign, CCS would be required to speculate as to what motivated the employees? decisions. Not only does the law not require such speculation, but doing so would place public employers in an impossible position of having to accurately guess what motivated employees to make changes in their professional lives. As the Public Access Counselor recently acknowledged, ?Not all separations are involuntary and the result of wrongdoing. An employee may simply choose to move on, or an agency may want to move in a different direction.? See Formal Opinion of the Public Access Counselor Again, the APRA is not a personnel law or policy and is not a basis for the creation of such laws or policies or procedures that bind government agencies to the wishes of others regarding how they should conduct their personnel matters. Moreover, Indiana law on contracts presumes all agreements entered into by capable adults represent voluntary action. ?Courts in Indiana have long recognized the freedom of parties to enter into contracts and have presumed that contracts represent the freely bargained agreement of the parties.? See Fresh Cut, Inc. v. Fazli, 650 NE 2d 1126, 1129 (Ind. 1995). Further, the courts ?continue to believe that it is in the best interest of the public not to restrict unnecessarily persons? freedom of contract.? Id. More recently, the Seventh Circuit Court of Appeals held that even an employee?s decision ?to resign rather than risk an unfavorable Merit Two North Ninth Street, Noblosviile, 46060 1? 317.773.2190 ii 317.773.5320 5 sir-1m! 5 5 5 A Partnership of Professional Corporations Board decision [did] not make his resignation involuntary.? Palka v. Shelton, 623 F.3d 447, 452 (7th Cir. 2010). It is also contrary to Indiana statute and public policy to discourage entities from accepting employee resignations. Public employees should be allowed to resign without forcing public employers to speculate as to why such decisions were made. Public employers should not be required to proceed with the process for termination, even though an employee wants to resign, in order to create a factual basis to disclose if asked. Such processes greatly increase the time and expense necessary for employment separation and could disrupt the governmental function, such as educating students, in order to create a record whose sole purpose is to satisfy the APRA. It would also produce additional litigation, as employees would be forced to ?ght off termination instead of being allowed to exit via resignation. Finally, it would disregard the rights of employees to separate from public employment for no articulable reason. Conclusion As described above, CCS has complied with the law and CCS requests that the Public Access Counselor ?nd no Violation of the APRA. While there may be differences of opinion regarding what CCS or any public agency ?ought? to do in carrying out its personnel responsibilities, the issue is what CCS is required to do under the APRA. CCS has gone above and beyond its obligations in this matter and no violation of the APRA should be found. Sincerely, CHURCH CHURCH ANT RIM David R. Day Counsel for Carmel Clay Scho ls Two North Ninth Street. Noblosvillc. IN 46060 317.773.2190 i 317.773.5320 a ilf:Hi Hf? Ir'lfii'Hd/HJEI A Partnership of Professional Corporations