Myers v. Greater Clark County School Corp.

• Decision Date: 18 June 1984
• Docket Number: No. 1-983A290,1-983A290
• Citation: 464 N.E.2d 1323
• Parties: 18 Ed. Law Rep. 400 Robert F. MYERS, Plaintiff-Appellant, v. GREATER CLARK COUNTY SCHOOL CORPORATION; Board of School Trustees of the Greater Clark County School Corporation; Michael Colston, member; John Ferguson, member; Robert Fields, member; Leslie Kavanaugh, member; Donald Gibson, member; Nancy Kraft, member; and Carl Bunnell, member; Boyd Carter, Superintendent; Charles Rubright, as agent for the Greater Clark County School Corporation and Boyd Carter, as Superintendent; Carl Bunnell, individually; Donald Gibson, individually; Leslie Kavanaugh, individually; and Nancy Kraft, individually, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 1323

464 N.E.2d 1323

18 Ed. Law Rep. 400

Robert F. MYERS, Plaintiff-Appellant, v. GREATER CLARK COUNTY SCHOOL CORPORATION; Board of School Trustees of the Greater Clark County School Corporation Michael Colston, member; John Ferguson, member; Robert Fields, member; Leslie Kavanaugh, member; Donald Gibson member; Nancy Kraft, member; and Carl Bunnell, member Boyd Carter, Superintendent; Charles Rubright, as agent for the Greater Clark County School Corporation and Boyd Carter as Superintendent; Carl Bunnell, individually; Donald Gibson, individually; Leslie Kavanaugh, individually; and Nancy Kraft, individually, Defendants-Appellees.

No. 1-983A290.

Court of Appeals of Indiana, First District.

June 18, 1984.

Robert W. Lanum, Charles R. Murphy, Fifer, Vogt & Lanum, Jeffersonville, for plaintiff-appellant.

David R. Day, Bose McKinney & Evans, Indianapolis, Kerry L. Thompson, Everitt, Houston & Thompson, Scottsburg, Jack Risinger, Greater Clark County School Corporation, Jeffersonville, for defendants-appellees.

NEAL, Presiding Judge.

STATEMENT OF THE CASE

Appellant, Robert F. Myers (Myers) was a permanent teacher formerly employed by the Greater Clark County School Corporation (Greater Clark) as an Assistant Superintendent for Auxiliary Services. Myers challenges the Scott Circuit Court's decision to uphold the Board of School Trustees of the Greater Clark County School Corporation's (School Board) cancellation of his contract on the grounds of immorality and other good and just cause.

We reverse.

STATEMENT OF THE FACTS

Myers was a permanent teacher with tenure who had been employed by the Greater Clark County School Corporation for the past 30 years as either a teacher or, more recently, an Assistant Superintendent of Auxiliary Services. Since he had obtained permanent teacher status, Myers was employed not only under an indefinite contract but also under an individual written contract having a three-year term ending on June 30, 1983.

By the summer of 1981, however, it was evident that there was growing dissatisfaction over Mr. Myers' presence and, to a lesser extent, his job performance in the school system. The School Board had received On July 13, 1981, Superintendent Carter and Jack Risinger an attorney who served as Greater Clark's general counsel and business manager, met with Charles R. Rubright, an Indianapolis attorney who represented the school corporation in employee relation matters. The purpose of the meeting was to discuss the procedure for terminating Myers' contract. During this meeting, Carter and Rubright also discussed Carter's role in the termination proceedings. Due to a close working relationship between Carter and Myers which had spanned eight years, "Carter explained that he was reluctant to make a recommendation to the School Board regarding Myers' contract". Finding of Fact, No. 12. IND.CODE 20-6.1-4-11, which outlines the procedures for cancellation of an indefinite contract by a school corporation, states in part that a contract may not be cancelled until "the superintendent has given his recommendation on the contract". IND.CODE 20-6.1-4-11(a)(7)(C). Therefore, Carter and Rubright "informally agreed" that Rubright would act on the former's behalf to make any recommendation required of the superintendent. Finding of Fact, No. 12.

several complaints about Myers' behavior in the past. One school board member, Carl Bunnell, was particularly disenchanted with Myers, because he suspected him of conducting an affair with his wife, alleged activity which contributed to the eventual breakup of the Bunnell marriage. Bunnell's strong feelings about the termination of Myers' contract were conveyed to other board members as well as to Superintendent Boyd Carter.

Rubright then explained the termination procedure to the School Board at an executive session meeting the next day, July 14th. During the executive session, it was the consensus of the School Board that an investigation of Myers was appropriate; further, Rubright was appointed to conduct the investigation for the administration and to act as prosecutor for the school corporation during the hearing. Upon Rubright's advice, Bunnell disqualified himself from any subsequent proceedings concerning Myers' termination. Bunnell did, however, aid the progress of the investigation by contacting witnesses to testify against Myers, specifically, Phyllis Gentry and Jesse Dobson. Also during this July 14th meeting, the School Board and the superintendent delegated to Mr. Rubright the authority to independently make the superintendent's recommendation to the School Board. School Board's Finding of Fact No. 3 (our emphasis). The Board apparently considered this delegation an offshoot of Rubright's status as independent investigator and prosecutor. The trial court specifically found that at no time was Rubright designated an agent for Carter by the Trustees. Finding of Fact No. 17.

Rubright conducted his investigation, and at a July 28th executive session, he informed the School Board that he had amassed evidence that the Board should hear. Subsequently, the Board set a time for consideration of the cancellation of Myers' contract and instructed Carter to inform Myers of the date. Myers, in response, requested the reasons for the action: the school corporation cited immorality and good and just cause; more specifically, Myers' sexual harassment of two female employees of the school corporation. Myers requested a hearing, as is his right under IND.CODE 20-6.1-4-11(a)(3), and the hearing was set for August 25, 1981.

Jesse Dobson, a cafeteria worker, and Phyllis Gentry, a school bus driver, testified at the hearing as to incidents involving Myers during his employment at Greater Clark. Both women were under Myers' supervision in his capacity as Assistant Superintendent of Auxiliary Services.

Mrs. Dobson related several incidents which occurred during the 1975-76 school year, including Myers' repeated visits to her workplace, an offer of lunch, an invitation to a Christmas party, and other acts of unsolicited special attention. Further, Mrs. Dobson testified that one morning Myers entered the cafeteria when she was alone, approached her, stood very close to her and then put his hands upon her face. At that Mrs. Gentry testified that during the 1979 school year she was having trouble disciplining the children on her school bus route, and Myers offered to ride on the bus to observe the students and attempt to assist her. He repeatedly requested to ride with her thereafter, even though the discipline problem was alleviated. Mrs. Gentry stated that on one occasion Myers leaned over her as she was looking at her schedule and allowed his hand to touch her breast. This incident was never reported. Mrs. Gentry initially refused to testify against Mr. Myers; she later changed her mind once Bunnell agreed to talk to the School Board about reinstating a friend of hers as an employee of Greater Clark.

moment, the other cafeteria workers arrived, and Mrs. Dobson pushed his hands away. This incident was reported to the superintendent and the problem was settled.

At the close of the hearing, Rubright stated that "my recommendation as the superintendent's recommendation would be that the contract of Mr. Myers be cancelled". We will discuss Rubright's statements as well as the ensuing discussion between Rubright and Myers' counsel regarding Rubright's authority to make such a recommendation in far greater detail in the body of this opinion. At no time, however, did Superintendent Carter give his recommendation on the cancellation of Myers' contract. Finding of Fact, No. 31.

On September 1, 1981, the School Board met in a public meeting and voted to cancel Myers' contract, 4-2. The grounds for cancellation were immorality and other good and just cause.

ISSUES

On appeal from the trial court's affirmance of the School Board's decision to terminate his contract, Myers raises four issues, which we have restated:

I. Whether the trial court erred by concluding as a matter of law that

A. a recommendation of the superintendent is not a prerequisite to the cancellation of an indefinite teacher's contract under IND.CODE 20-6.1-4-11; and

B. to the extent such recommendation is required, it was fulfilled by Rubright's recommendation at the August 25th hearing.

II. Whether the trial court erred by concluding as a matter of law that Myers' contract was not cancelled for personal or political reasons and that certain members of the school board were not precluded from hearing the case because of personal prejudice or bias against Myers.

III. Whether Rubright's multiplicity of roles violated Myers' due process rights.

IV. Whether the trial court erred in excluding certain testimony of John Boyd.

Inasmuch as we reverse the trial court's decision on the basis of Issue I, we will not discuss the latter three issues.

DISCUSSION AND DECISION

Issue I: Superintendent's Recommendation

The relevant statutory language which is the subject of the discussion states:

"20-6.1-4-11 Cancellation of an indefinite contract by school corporation; procedures

(a) an indefinite contract may be cancelled only in the following manner:

* * *

* * *

(7) a contract may not be canceled until:

* * *

* * *

(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 superintendent's contract;"

(Emphasis added).

The underlined language is explicit. It requires no interpretation or statutory construction to conclude that the contract can be cancelled only in the above manner: the contract "may not be canceled until ... the superintendent has given his recommendation ". The fundamental rule of statutory construction is that one must divine the intention of the legislature; further, words and phrases will be taken in...