INFORMAL INQUIRY RESPONSE |
PAC: ‘FT School Board violated Indiana law' Members of the Franklin Township School Board apparently violated provisions of Indiana Code relating to the Open Door Law in the way it handled the firing just over six months ago of an FT Schools employee. That is the opinion of Karen Davis, the state's Public Access Counselor. Her written informal inquiry response – dated Wednesday, March 22, 2007 – addresses a complaint filed back in mid-October, 2006, by Bernie Gilmer, general manager of FTONEWS.com. The complaint against the FT School Board centered on the manner in which Ray Pier, the school district's former director of operations, was dismissed amid charges of misconduct. Pier was terminated following a closed (executive) School Board session on September 5, and prior to a public School Board meeting on September 25, when a formal vote was taken to fire Pier. “It is my opinion,” stated Davis in the informal inquiry response, “that the School Board should not have made a determination in the executive session. If the School Board made a determination on September 5, it would have violated the Open Door Law. “In reviewing the events that culminated in the firing of Mr. Pier,” the Davis response continues, “it appears that the School Board made a determination.” According to Indiana Code pertaining to the Open Door Law, a public agency such as the Franklin Township School Board is prohibited from voting on any issue during a meeting that excludes public attendance. In her response, Davis wrote that unofficial meeting minutes supplied to her by the FT School Corporation leave the impression that some among the five School Board members on hand at the executive session on September 5 believed that they had voted on the issue. Davis pointed to board member Geoff Horen as characterizing the School Board's action in firing Pier being based on the “projected vote.” Horen, however, also disputed that any consensus to terminate Pier had been reached in the executive session. Board member Randall Bland, however, said at the public School Board meeting on September 25 – after Pier already had been served notice of his termination and after the termination already had become final – that he wanted the public to know when the decision was made, and that it was made in executive session “unanimously.” The matter of Pier's firing came up at the public meeting on September 25 during consideration of the monthly personnel report submitted for Board approval. At the request of Horen, the Board unanimously agreed to consider Pier's listed termination as a separate item apart from the full personnel report. Horen subsequently made a motion to have Pier's termination rescinded. Following extensive discussion that included the baring of what was perceived by FTONEWS.com as action being taken in violation of the Indiana Open Door Law, the School Board by a 3-2 vote overturned Horen's motion (Board members Horen and Christopher Wood favored the motion; Board members President Matt Hamner, Steve Randall and Bland voted against it). A motion at the public meeting then followed to formally terminate Pier. The motion passed 3-2, with Bland, Hamner and Randall favoring the firing of Pier; Horen and Wood voted against the employee's dismissal. The FT Schools superintendent, Dr. Walter D. Bourke, indicated during the public meeting, and later during a written response to the state's Public Access Counselor addressing the complaint filed by FTONEWS.com, that he had not recommended the firing of Pier. However, in his correspondence to Davis, Dr. Bourke indicated that he believes that an Indiana court case (Baker v. Town of Middlebury) makes it clear that a Board of Education may discuss the misconduct of an employee and come to a general consensus on a plan of disciplinary action for that employee, so long as the final action is taken by vote in an open public meeting. “That is exactly what happened in our executive session on Tuesday, September 5,” Dr. Bourke wrote. In the next paragraph in the correspondence to the Public Access Counselor, Bourke wrote: “Following the executive session, I called Board President Matt Hamner to inform him that I would not make a recommendation to terminate our employee and that the Board would have to do so without my recommendation.” On the day following the executive session and after a telephone poll of Board members was conducted by President Hamner, the superintendent was informed that a majority of the Board members desired to see Pier terminated. Bourke said he removed the employee and awaited the Board's final vote in the open public meeting on September 25, 2006. “We do not believe any violation of the Indiana Open Door Law has occurred,” summed up Bourke in his letter to Davis. The Public Access Counselor, however, disagreed with Bourke in her informal inquiry response. Davis wrote: “It is my opinion, based on the information before me, that the (Franklin Township) School Board's actions went beyond what may be accomplished in the executive session, even under the ruling in Baker v. Middlebury . That ruling by the Indiana Court of Appeals held that a town council could meet in executive session for the purpose of evaluating employees, and to make a decision to not include the town marshal on a rehire list, where the rehire list was later voted on at a public meeting. The Court found that the final action was taken by vote at a subsequent public meeting, not by its compilation of the rehire list in executive session. Davis noted that while facts involving the FT School Board and the Town of Middlebury are similar, there are significant differences between the two. “Because the holding in Baker may not apply with equal force to the purpose of the (FT School Board's) September 5 executive session, and because there is a serious dispute regarding whether a formal vote was taken during the executive session, I am not convinced that Baker applies here.” According to previous news reports, Pier was fired as the FT Schools director of operations following an internal investigation of allegations that he made untruthful representations about the involvement of School Board members relating to the school district's purchase of a Chevy Tahoe. In accordance with School Board policy relating to non-certified personnel, Pier was given a notice of 10 working days of his dismissal, with termination effective on Friday, September 22. - FTONEWS.com - |