Pierce v. State Dept. of Correction

• Decision Date: 30 April 2008
• Docket Number: No. 49A04-0706-CV-357.,49A04-0706-CV-357.
• Parties: Cory PIERCE, Judith McIntosh, Thomas Ferrara, Judy Willis, Linda McHargue, and All Other Institutional Teachers at a Juvenile Correctional Facility Who Are Not Certified for Teaching of Special Education, Appellants-Plaintiffs, v. STATE of Indiana DEPARTMENT OF CORRECTION, South Bend Juvenile Correctional Facility, Pendleton Juvenile Correctional Facility, Northwest Juvenile Correctional Facility, North Central Juvenile Facility, Indianapolis Juvenile Correctional Facility, Indiana State Personnel Department and Indiana State Employees' Appeals Commission, Appellees-Defendants.
• Court: Indiana Appellate Court

885 N.E.2d 77

Cory PIERCE, Judith McIntosh, Thomas Ferrara, Judy Willis, Linda McHargue, and All Other Institutional Teachers at a Juvenile Correctional Facility Who Are Not Certified for Teaching of Special Education, Appellants-Plaintiffs, v. STATE of Indiana DEPARTMENT OF CORRECTION, South Bend Juvenile Correctional Facility, Pendleton Juvenile Correctional Facility, Northwest Juvenile Correctional Facility, North Central Juvenile Facility, Indianapolis Juvenile Correctional Facility, Indiana State Personnel Department and Indiana State Employees' Appeals Commission, Appellees-Defendants.

No. 49A04-0706-CV-357.

Court of Appeals of Indiana.

April 30, 2008.

Eric M. Hylton, James B. Chapman, Dann Pecar Newman & Kleiman, Indianapolis, IN, Attorneys for Appellants.

Steve Carter, Attorney General of Indiana, Frances H. Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellees.

OPINION

SHARPNACK, Judge.

Cory Pierce, Judith McIntosh, Thomas Ferrara, Judy Willis, Linda McHargue, and all other institutional teachers at a juvenile correctional facility who are not certified for teaching special education (the "Teachers") appeal the trial court's denial of their motion for judgment on the record. The Teachers raise one issue, which we revise and restate as, whether the trial court erred by affirming the State Employees' Appeals Commission's ("SEAC") decision that the Indiana Department of Correction ("DOC") could require all juvenile correctional facility teachers to obtain special education licenses. On cross-appeal, the DOC, et al., argue that the trial court improperly ordered the DOC to comply with the SEAC's recommendations. We affirm in part and reverse in part.

The relevant facts follow. On February 10, 2004, the United States Department of Justice ("DOJ") notified State of Indiana officials in the governor's office of its intent to investigate conditions of confinement at the Logansport Juvenile Intake/Diagnostic Facility, the South Bend Juvenile Correctional Facility, and the Plainfield Juvenile Correctional Facility. On September 9, 2005, the DOJ issued findings and concluded that conditions at the facilities in 2004 violated the constitutional and federal statutory rights of juveniles confined in the facilities.

On February 8, 2006, the State of Indiana and the DOJ entered into an agreement that stated, in part:

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IV. THE STATE'S VOLUNTARY MEASURES TO ENSURE THE PROTECTION OF THE CONSTITUTIONAL RIGHTS OF ALL JUVENILES IN ITS CUSTODY

The State recognizes that the Department of Justice's investigation was confined to the facilities identified in the DOJ's September 9, 2005 findings. In recognition of those deficiencies and in the interest of adequately protecting the constitutional rights of all juveniles confined in the IDOC system, the State voluntarily agrees to implement the substantive remedial measures contained throughout this document, where appropriate, at all juvenile facilities operated by IDOC. The State further agrees to provide periodic, voluntary reports to DOJ regarding the progress of those improvements at facilities that are not the subject of this Agreement, including regular reports resulting from a partnership with IDOC and the Indiana Juvenile Justice Task Force. To facilitate comprehensive monitoring of IDOC's compliance with this provision, the State will provide full access to all of its juvenile facilities at the request of those monitors identified through a process agreed upon with the Indiana Juvenile Justice Task Force.

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C. SPECIAL EDUCATION

The following substantive provisions are intended to address the findings of the United States in connection with its investigation of, and apply only to, South Bend.

1. The State shall, at all times, provide all qualified youth with adequate special education in compliance with the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400, et seq., and regulations promulgated thereunder, and this Agreement.

2. The State shall designate a Director of Education to oversee the special education programs at South Bend. The Director shall meet minimum standards as specified by the State. The State shall provide the Director with sufficient staff and resources to perform the tasks required by this Agreement, including:

a. Overseeing the special education programming at South Bend, including the development and implementation of policies, procedural manuals, and training programs;

b. Monitoring whether special education staffing and resources are sufficient to provide adequate special education services to youth at South Bend and to ensure compliance with this Agreement;

c. Developing and implementing a quality assurance program for special education services;

d. Developing and implementing an adequate vocational education program for youth with disabilities;

e. Developing and implementing a curriculum for special education instruction at South Bend;

f. Ensuring that special education teachers are appropriately licensed to teach assigned courses by requiring that all licensed teachers at the facility obtain certification in special education by the Indiana Department of Education within 180 days of the date of this Agreement;

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Appellant's Appendix at 239-243 (emphasis added).

That same day, John Nally, the Director of Education for the DOC, sent a letter to Sherene Donaldson at the Indianapolis Juvenile Correctional Facility, which stated:

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The purpose of this letter is to inform you of a specific corrective action that impacts all current institutional teachers in the juvenile schools. The agreement, in part, reads,

"Ensuring that special education teachers are appropriately licensed to teach assigned courses by requiring that all licensed teachers at the facility obtain certification in special education by the Indiana Department of Education within 180 days of the date of this agreement;"

This statement will require that all teachers who currently have special education endorsements on their licenses will maintain those licenses. And, it requires that all institutional teachers in the juvenile schools who do not possess a special education endorsement will immediately begin the process to secure that endorsement. For example, a current institutional teacher with a secondary science license and no special education endorsement will be required to secure that endorsement immediately. The expectation is that all institutional teachers will have the documentation supporting this requirement by August 7, 2006.

Please refer to http://www.doe.state.in. us/dps/licensing/limited/ welcome.html for details on securing the initial emergency permit license. The acquisition of the emergency permit and the subsequent completion of the endorsement are governed by the rules of the Division of Professional Standards, Indiana Department of Education.

While the settlement agreement applies specifically to Logansport and South Bend, the Department has committed to the U.S. Department of Justice that all substantive remedial measures within the agreement will apply to all juvenile facilities.

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Id. at 38.

In February and March, the Teachers filed merit employee complaints objecting to the DOC's new requirement that they obtain a special education license. The State Personnel Department denied all of the complaints. The Teachers filed appeals to the SEAC, which assigned the proceeding to an administrative law judge.

On July 7, 2006, the administrative law judge issued a "NON-FINAL ORDER," which provided, in part:

FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH NON-FINAL ORDER OF THE ADMINISTRATIVE LAW JUDGE

STATEMENT OF THE CASE

In February 2004 the U.S. Department of Justice (DOJ) contacted officials in Indiana to inform them of the DOJ intent to investigate conditions of confinement at the Logansport Juvenile Intake/Diagnostic Facility ("Logansport"), South Bend Juvenile Correctional Facility ("South Bend"), and Plainfield Juvenile Correctional Facility ("Plainfield"). On February 8, 2006, the DOJ and the State of Indiana entered into a Settlement Agreement (the "Agreement") that addressed issues at Logansport and South Bend.

Under the terms of the Agreement the institutional teachers at South Bend would be required to obtain certification in special education by the Indiana Department of Education (DOE) within 180 days of the date of the agreement. However, it appears that the Department of Correction (DOC) committed to the DOJ that all substantive remedial measures within the Agreement would apply to all Indiana juvenile facilities. Accordingly, on February 8, 2006, the DOC informed the institutional teachers at all juvenile facilities that if they did not have the special education license they would have to take steps to obtain said license.

The DOC offered no financial support, no work time off to pursue the license, and no system to allow for teachers to apply for a waiver when special circumstances exist. Accordingly many of the institutional teachers involved have filed merit complaints. Some of the teachers are not members of the Indiana State Teachers Association (ISTA) but those teachers who attended the prehearing conference on April 25, 2006, agreed to be bound by the result reached for ISTA members through ISTA representation by Doyle McAllister.

Even though the issue here appeared to be legal in nature the parties agreed to an evidentiary hearing. The hearing was held on May 24, 2006, in Indianapolis, Indiana. Mr. McAllister represented the [Teachers]. Joel Lyttle, DOC staff counsel, and Richard Bramer, Deputy Attorney General, appeared for the [Indiana Juvenile Correctional Facilities and the DOC]. The parties agreed that these merit complaints involved a condition of employment (the requirement to obtain the special education license) for the institutional teachers and obviously the condition was unsatisfactory to the [Teachers] or they...