Indiana State Personnel Bd. v. Jackson

• Decision Date: 30 September 1963
• Docket Number: No. 30329,30329
• Parties: INDIANA STATE PERSONNEL BOARD, Appellant, v. Merle JACKSON, Appellee.
• Court: Indiana Supreme Court

Page 740

192 N.E.2d 740

244 Ind. 321

INDIANA STATE PERSONNEL BOARD, Appellant, v. Merle JACKSON, Appellee.

No. 30329.

Supreme Court of Indiana.

Sept. 30, 1963.

Edwin K. Steers, Atty. Gen. of Indiana, Thomas A. Brown, Robert W. McNevin, Deputy Attys. Gen., for appellant.

Bell & Bell, Indianapolis, Harold E. Ford, Madison, for appellee.

LANDIS, Judge.

This is an appeal from a judgment of the Jennings Circuit Court setting aside the dismissal of appellee by the Indiana State Personal Board from his employment as an institutional teacher at the Muscatatuck State School.

Appellee as such institutional teacher was a regular employee in classified service under the State Personnel Act. ¹

It further appears that on or about September 20, 1961, appellee received a letter from Dr. D. H. Jolly, superintendent of the Muscatatuck State School, suspending him from his employment, and on or about October 10, 1961, Appellee received a notice and dismissal from his said employment. His dismissal was made upon the following charges:

'1. Abuse of Patient, consisting of failure to comply with Chapter 118, Acts of 1955, Section 2 and with Department of Mental Health Official Bulletin Number 14 in that on September 13, 1961, plaintiff did discipline a patient, Sandra Ford, by striking her across the buttocks with a belt.

'2. Insubordination, consisting of failure or outright refusal to perform a specifically assigned task of submitting a full written report of a certain incident, which report was requested by Superintendent Jolly in June, 1961, and not done as of September 18, 1961.'

Appellee filed request for a hearing before the Indiana Personnel Board resulting in an order sustaining his dismissal.

Appellee petitioned for judicial review under the Administrative Adjudication and Court Review Act, ² and the court below on July 27, 1962, reversed the decision of the State Personnel Board and ordered that appellee be reinstated as an employee at the Muscatatuck State School without loss of pay from the time of his suspension from employment. Appellant Personnel Board appeals from the judgment.

The Administrative Adjudication and Court Review Act (Burns' § 63-3018, 1961 Repl., supra) governs the proceedings for judicial review of the board's order by the trial court and provides:

'On such judicial review such court shall not try or determine said cause be novo, but the facts shall be considered and determined exclusively upon the record filed with said court * * *.

'On such judicial review if the agency has complied with the procedural requirements of this act, and its finding, decision or determination is supported by substantial, reliable and probative evidence, such agency's finding, decision or determination shall not be set aside or disturbed.'

Appellant asserts there is probative evidence in the record to support appellant board's (agency's) finding of facts and determination which was so far as pertinent as follows:

'1. That Merle Jackson was, during the month of June, 1961, requested to submit a full report to the superintendent concerning the disciplinary action taken by said Merle Jackson with respect to a patient of the Muscatatuck State School, whose name was Teressa Southgate.

'2. That at no time did said Merle Jackson submit a report to the said superintendent as requested.

'3. That on or about September 13, 1961-Merle Jackson did strike a patient at Muscatatuck State School, namely Sandra Ford, across the buttocks in a class room at said institution and again in his office.

'4. That in each instance the said Merle Jackson struck the patient, Sandra Ford, across the buttocks with his belt.

'5. That the said Merle Jackson admitted striking the patient, Sandra Ford, with his belt twice in the class room and again with his belt two or three times in his office.

'The Indiana State Personnel Board concludes that striking a patient of a mental institutional in the State of Indiana with a belt was contrary to the policy of the Muscatatuck State School and the law of the State of Indiana. Therefore, the Indiana State Personnel Board enters the following order:

'The dismissal of Merle Jackson from employment at the Muscatatuck State School for insubordination and striking a patient of said Institution is hereby sustained.'

Appellant has discussed the board's findings side-by-side with the court's findings and we shall therefore do likewise in this opinion.

Appellant contends however, while the board's findings are supported by probative evidence, that the lower court's findings of facts 7 through 17 are not supported by sufficient evidence and are contrary to law.

Appellant argues at the outset that the court's findings of facts 7, 8 and 9, are clearly beyond the evidence introduced before appellant board and as set forth in the transcript.

These findings were:

'7. That on September 13, 1961, plaintiff did discipline Sandra Ford, a fourteen year old girl in a classroom and in his office, by striking her, in the presence of witnesses, across the buttocks with a belt very lightly and without anger, and only after persuasion and other means had been tried and had failed.

'8. That the spanking by plaintiff of Sandra Ford on September 13, 1961, was in no way abusive but was done in a manner kindly but firm and in a successful attempt to assist the girl in getting control of herself.

'9. That Sandra Ford was not injured or harmed by said spanking but was quieted thereby and exhibited good will and cooperation wit her teachers and classmates thereafter and that said spanking of said Sandra Ford was done by plaintiff in her interests.'

These findings of the court deal with the same subject matter as finding 3, 4 and 5 of the board. It will be noted, however, that the board's findings are only in substance that on or about September 13, 1961, Merle Jackson, appellee, struck Sandra Ford across the buttocks with his belt twice in the classroom and two or three times in his office. Upon comparison with the lower court's findings, it will be seen that all of the board's findings 3, 4 and 5 have been included in the court's findings 7, 8 and 9, together with other facts.

In support of appellant's argument that the board's findings are proper whereas the court's findings 7, 8 and 9 are improper, appellant relies solely on appellant's exhibits 5 through 10. These exhibits were photographs taken of the fourteen year old girl after the disciplinary action. Appellant contends they show bruises upon her committed with some kind of force greater than expressed in the court's findings which state she was disciplined '* * * by striking * * * in the presence of witnesses, across the buttocks with a belt very lightly and without anger * * *' and that the '* * * spanking * * * was in no way abusive, but was done in a manner kindly but firm and in a successful attempt to assist the girl in getting control of herself.'

We are unable to see any conflict between the pictures and the findings of the court in the respect urged.

However, the board's findings did omit and ignore certain uncontradicted and pertinent facts testified to by eye witnesses, which were properly found by the lower court in its findings, viz: that the striking was done without anger and was done lightly (testimony of Mr. White and Mrs. Coryea), that prior to any striking of the girl, the appellee and other school personnel tried persuasion and other means of enabling Sandra Ford to get control of herself, that the spanking of Sandra Ford by appellee did not injure or harm the girl but enabled her to get control of herself and to cooperate with the teachers and her classmates and was in her best interest (testimony of Dr. Sprague, Mr. White, Mrs. Coryea).

It appears further from the uncontradicted evidence that Sandra Ford on the day in question was using in the classroom very abusive language toward her teacher, Mr. White, who was standing over to one side of the room trying to teach the youngsters; that she stated: '* * * We ran away last night and we're going to do it again * * *' (referring to the fact that she had been out all night with some teenagers of both sexes); that when her teacher told her to be quiet because there were other students in the room, the girl said: '* * * I don't have to be still. That's what my mouth is made for, to talk.' That Mr. White called appellee, Mr. Jackson, his supervisor to the room and that appellee tried to talk to the girl in a very nice way and told her to get her book and go to work; that appellee tried to help her and she began using abusive language toward him, calling him profane names and throwing her book to the floor. She said to appellee: '* * * I will go to Miss White, get you fired. * * *' That appellee then took off his belt and very lightly spanked her one or two times across the buttocks. She continued using abusive language and Mr. Jackson took her out of the classroom. She returned to the classroom in half an hour or forty-five minutes (testimony of Mr. White). There is further uncontradicted testimony by Mr. White that Mr. Jackson did the only thing he could have done under the circumstances, and at the time he administered the two licks to Sandra Ford in the classroom, Mr. Jackson did not appear to be angry. There is further evidence that Sandra Ford had the intellectual ability to understand why the punishment was being given (testimony of Dr. Sprague).

Appellant has stated in its brief that: 'For years the subject of the relationship between teacher and pubil [sic] has been a matter of public concern. The question of spanking students has received exhaustive consideration and, insofar as public schools are concerned, it is still subject to question as to how far a teacher can go in striking a student. * * *'

Contrary to appellant's contention, the law of Indiana clearly accords to the public school teacher in proper cases the same right over a child in his or her school as is...