Opinion
Page 826
Richard J. Darko, of Bingham, Summers, Welshs&s Spilman, Indianapolis, for appellant.
Scifres, Hollingsworths&sMartin, Lebanon, Isaac D. Gregg, Thorntown, for appellees.
PETITION FOR REHEARING DENIED WITH OPINION
LOWDERMILK, Judge.
On June 22, 1972, appellee filed petition for rehearing to which appellant filed a brief in opposition thereto on June 27th, 1972. This was followed by the filing of a petition to dismiss the petition for rehearing, supported by a brief thereon, filed June 27th, 1972.
Thereafter, on July 5, 1972, appellees filed their brief in opposition to petition to dismiss petition for rehearing.
The Indiana School Boards Association and the Indiana Association of School Superintendents, on July 6, 1972, filed petition for leave to file brief as amici curiae in response to the opinion of this court entered on June 5, 1972, Ind.App., 283 N.E.2d 385.
Plaintiff-appellant filed objection to petition of the Indiana School Boards Association and Indiana Association of School Superintendents for leave to file brief as amici curiae and appellant's petition to strike said petition.
On July 10, 1972, the court overruled appellant's petition to strike said petition and granted appellant ten days from July 10th to file an answer brief to the brief of amici curiae under Rule AP 8.3(F).
And afterward, on the 19th day of July, 1972, plaintiff-appellant filed answer brief to the amici curiae brief heretofore filed.
The court, having considered the matters and petitions above enumerated and being duly and fully advised in the premises, overrules appellant's petition to dismiss the petition for rehearing and further, having considered the brief of the Indiana School Boards Association and Indiana Association of School Superintendents as amici curiae in response to the opinion of this court entered June 5, 1972, and having further considered the answer brief of plaintiff-appellant to the amici curiae brief and now, being duly and fully advised in the premises, denies the petition for rehearing with the following opinion:
Firstly, the able counsel for the Indiana School Boards Association and Indiana Association of School Superintendents as amici curiae state in their brief that they:
'. . . do not themselves question the result reached by the Court in its decision. The decision is questioned in a Petition for Rehearing filed by the School Board on June 22, 1972.
'Amici curiae recognize that the decision of a school board in such a hearing should be based solely on the evidence presented at the hearing, and that its decision cannot rely on information secured outside of the hearing itself. This basic requirement, we understand, is the main thrust of the Court's Opinion in the instant case. . . .'
Amici curiae contends that this court's language places a new and novel restraint on the investigatory power of school boards in Indiana and their administrative staff, and would seem to create a requirement of judicial insulation from the facts in every case, that is not necessary or feasible, and is not now required by the Fourteenth Amendment of the Constitution of the United States.
They further set out that part of the court's opinion which stated as follows:
'In reviewing the evidence, we have determined that the members of the school board constitute the Board of Education of the Western Boone County Community Schools, and heard the charges presented against the plaintiff-appellant as an administrative body. As such, the Board of Education is charged with the same legal procedure of accepting or rejecting evidence as a state wide administrative body. Tippecanoe Valley School Corporation v. Leachman (1970), Ind.App., 261 N.E.2d 880; Guido v. City of Marion (1972), Ind.App., 280 N.E.2d 81.'
And further, they state that it seems to amici curiae that the language might require all school boards in Indiana 'as a state wide administrative body' to comply with the provisions of the Indiana Administrative Adjudication and Court Review Act (IC 1971, 4--22--1--1; Burns § 63--3001, et seq.), which governs all agencies of the State of Indiana not expressly excluded from the Act.
This court is of the opinion that the statement of this court above quoted and questioned by amici curiae cannot be construed, and it certainly was not intended, to go beyond the scope of the Leachman and Guido cases, supra, which indicate that each case must be judged on the particular facts of that case. Further, we did not intend that school board hearings comply with formalities of the Indiana Adminstrative Adjudication and Court Review Act, supra.
Amici curiae raises a second question, which pertains to the fact that all members of the school board approached Superintendent Fritch prior to the hearing to determine what the evidence would be and what the case was all about. Anything he told them would be hearsay.
If a court or board does consider hearsay evidence it is entirely possible that a reviewing court, not knowing that the same has been one, may unwittingly err in its opinion on the appeal. In other words, a court or board's considering hearsay, or curbstone evidence, in arriving at its opinion can cause the greatest amount of injustice to parties litigant in the trial before a court or board in the first instance, or may cause an equally unjust ruling on appeal.
This court fully recognizes that this same burden and obligation applies to members of a school board in the respective cities and counties of Indiana and this burden having been placed upon them they must accept it and handle it in the same manner as above set out.
For us to say that the school board members should not discuss these cases or the conduct of the teachers would be for us to make a foolhardy statement. It is natural for them to do so and they will.
Mr. Shubert, president of the Board of Education, had made his own private investigation, had talked with other teachers and other persons, and as was said in the opinion:
'. . . Mr. Shubert further testified that he relied, at least in part, on the information which Mr. Valentine had given him, in making his decision to dismiss the plaintiff as a teacher in the defendant school corporation.'
Amici curiae further states:
'The fact that the School Board sought information from the Superintendent of Schools and that the Superintendent of Schools made an independent investigation of the facts and circumstances surrounding the charges made against the plaintiff-appellant, and furnished this information to the School Board, including an affidavit from the former principal, Mr. Valentine, does not violate the constitutional rights of the plaintiff-appellant. It is not what is done before the hearing, but at the hearing that is constitutionally significant.'
Mr. Valentine, the former principal of the school in which plaintiff-appellant taught, was available as a witness in the State of Indiana, where the defendants-appellees could have secured his deposition, as stated in the opinion. Mr. Valentine did not testify by deposition nor in person and, therefore, plaintiff-appellant had no opportunity to cross examine him pertaining to the charges against the plaintiff-appellant, Mr. Doran; any evidence considered by the board hearing the charges which was given to the board by Mr. Valentine, through his informing others who, in turn, gave the information to the board, was hearsay, was improper and should not have been permitted into the record and should not have been considered by the board. We did not mean in our original opinion that the members of the school board discussing the case with members of the public and with school teachers caused the disqualification of the school board to hear the case and neither did we intend to convey that their hearing the case under such circumstances was a violation of the due process requirements of the Fourteenth Amendment to the United States Constitution.
Plaintiff-appellant's constitutional rights were violated, as set forth in our opinion, in the failure to have former principal Valentine present and give appellant Doran the right of cross examination. We are of the further opinion that there was grave error in Mr. Shubert's relying, in part, on evidence he had heard outside of the hearing in arriving at his decision.
Amici curiae's third specification is as follows:
'One page 13 of the Court's Opinion, it is stated:
"In the case at bar we are constrained to hold that the conduct and action of the School Board and its personal actions and investigations made prior to the Board's hearing as an administrative agency was a gross abuse of discretion and, therefore, violated plaintiff-appellant's rights under the Fourteenth Amendment to the United States Constitution, and is contrary to law. It is our opinion that the proper procedure would have been for the Board of Education to have gathered information for the hearing through its attorney, Mr. Gregg, and its Superintendent, Mr. Fritch, between the time notice was given to plaintiff-appellant Doran of his suspension and the date for the hearing. The evidence could then have been properly presented to the Board of Education on the hearing date and there would have been no question that they had prejudged the case.'
'This language would appear to forbid a school board from conducting any investigation or making any inquiries or even, perhaps, from receiving complaints concerning the facts and circumstances of any alleged misconduct of any of its teachers, prior to the hearing, or, at least, at any time after notice of hearing was given the teacher. This restriction would presumably also prevent the Board from conferring with the Superintendent of Schools or other school personnel or school patrons or even examining school records concerning the teacher, prior to the hearing.'
In our opinion, we have heretofore in this opinion denying rehearing fully discussed the question presented by amici curiae.
Of course, the school board is not precluded from making an investigation and, in fact, it is their obligation and duty to do so, or have it done. However, it must be done either by the school board or a duly authorized employee in conformity with the law and any evidence which the members of the school board gather and know about prior to the hearing must not be relied upon by them or considered by them in arriving at their decision. They can and must rely only on the evidence presented at the hearing where the teacher charged is entitled to and shall have the right to cross examine the witnesses presented at the hearing, together with the further right to introduce to the board evidence in his own behalf which shall be considered by the board in arriving at its decision.
ROBERTSON, P.J., and LYBROOK, J., concur.