ROBB, Judge.
Risha Warren filed a complaint against the Board of School Trustees of the Springs Valley Community School Corporation ("School Board"), alleging violations of Indiana's Open Door Law, breach of contract, and defamation. The trial court granted summary judgment in favor of the School Board. Warren appeals, raising the following restated issues: 1) whether the trial court erred in granting summary judgment; and 2) whether the trial court erred in denying her motion to compel. Concluding the trial court erred by granting summary judgment in favor of the School Board as to the Open Door Law claim, we reverse and remand for further proceedings on that claim. On the remaining claims we affirm the grant of summary judgment in favor of the School Board. As for Warren's motion to compel, we conclude the trial court did not abuse its discretion and affirm the trial court's denial of the motion. We therefore affirm in part, reverse in part, and remand.
From August 2008 to December 2012, Warren was employed as a second grade teacher at Springs Valley Elementary School. On November 16, 2012, Warren administered a "matching" test to her students. Appellant's Appendix at 472. One student, whom Warren believed "was not performing to her best potential," completed the test by drawing lines straight across the page. Id. at 123. The student "ma[de] no effort to do the test correctly." Id. When Warren discovered the student's lack of effort, she took the student to see the school principal. On the way to the principal's office, another teacher heard Warren say she was going to "kill" the student. Id. at 305. Warren was "crying and upset" when she entered the principal's office. Id. at 328. She demanded to see an administrator and told the secretaries, "If you don't get me an administrator now, I'm going to kill her!" Id. The secretaries did not believe Warren's threat was credible, but they arranged for Warren to go home early.
On December 3, Warren requested a private conference with the School Board. Superintendent Pritchett issued to Warren a "Notice of Conference with School Board," which stated in relevant part,
Id. at 471.
In addition, the School Board gave the following public notice of the meeting:
Id. at 483.
On December 20, the School Board convened and conducted the private conference during an executive session. Warren attended with her attorney, Michael Kendall, and her union representative, Sandra Steele. The private conference portion was "quite long." Id. at 121. The School Board heard testimony from nine different witnesses and received twelve exhibits.
The School Board had concluded the executive session and held a public meeting to vote on Warren's termination. The School Board did not notify Warren that the executive session had ended. The meeting memorandum indicates the School Board "met in Regular Session at 2:25 A.M. on December 21, 2012" and voted to dismiss Warren prior to adjourning at 2:33 A.M. Id. at 485. The motion to terminate Warren's contract "passed by the vote of 4-0-3," with three board members abstaining. Id.
Several members of the public attended the meeting, including Warren's stepmother and sister, but Warren did not attend because she was unaware the meeting was taking place. The School Board signaled the beginning of the meeting by opening the doors and sending someone into the hallway to make an announcement. Members of the public were congregating in the "common area" of the building. Id. at 192. One board member recalled, "I think that the restroom passes by where the public was so I believe that a few board members walked out to go to the restroom and informed the public." Id. at 145.
Warren subsequently filed a claim for unemployment benefits. A claims deputy found Warren was discharged for just cause and thus ineligible for benefits. The Review Board of the Indiana Department of Workforce Development affirmed the denial of benefits, and this court affirmed the Review Board's determination in Warren v. Review Bd. of Ind. Dep't of Workforce Dev., No. 93A02-1311-EX-949, 2014 WL 1390567 (Ind.Ct.App. May 7, 2014).
Warren also filed a complaint alleging violations of Indiana's Open Door Taw. See Ind.Code § 5-14-1.5-1 to -8. The complaint requested a declaratory judgment voiding the final action taken by the School Board at the December 21st meeting and injunctive relief reinstating Warren's teacher contract. The School Board filed a motion for summary judgment and designated evidence in support, including our decision affirming the Review Board's determination denying Warren unemployment benefits. Warren later amended her complaint by adding two additional counts alleging breach of contract and defamation. The School Board filed a Notice to the Court Regarding Summary Judgment, which stated its previously filed motion for summary judgment and designations were dispositive of all of Warren's claims, including the newly added ones.
Warren filed a response to the School Board's motion and designated evidence in opposition to summary judgment. Thereafter, the trial court held a hearing on the motion for summary judgment. After the hearing, Warren filed supplemental designations, but the School Board promptly moved to strike the supplemental designations. The trial court granted the School Board's motion to strike and motion
Warren contends the trial court erred in granting the School Board's motion for summary judgment. We review the grant of summary judgment de novo. Lyons v. Richmond Cmty. Sch. Corp., 19 N.E.3d 254, 259 (Ind.2014). Our review is limited to those facts designated to the trial court, Ind. Trial Rule 56(H), and we construe all facts and reasonable inferences drawn from those facts in favor of the non-moving party, Meredith v. Pence, 984 N.E.2d 1213, 1218 (Ind.2013). We will affirm a grant of summary judgment only if the designated evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. T.R. 56(C). On appeal, the non-moving party carries the burden of persuading us the grant of summary judgment was erroneous. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.2014).
The order granting the School Board's motion for summary judgment stated this court's decision affirming the determination that Warren was discharged for just cause collaterally estopped Warren's breach of contract claim. Collateral estoppel applies when "a particular issue is adjudicated and then put in issue in a subsequent suit on a different cause of action between the same parties or their privies." Ghosh v. Ind. State Ethics Comm'n, 930 N.E.2d 23, 26 (Ind.2010) (quoting McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390, 394 (Ind.1988)). "Fundamentally, the issue sought to be estopped must be the same as the issue previously adjudicated." Bartholomew Cnty. v. Review Bd. of Ind. Dep't of Workforce Dev., 14 N.E.3d 806, 811 (Ind. Ct.App.2014), trans. denied. In the context of administrative collateral estoppel, our supreme court has adopted the following test:
McClanahan, 517 N.E.2d at 394. If any element is absent, collateral estoppel does not apply. See id.
The School Board argues our decision affirming the Review Board's determination denying Warren unemployment benefits estops all of Warren's claims in the present case.
Moreover, even if the issues were the same, Indiana Code section 22-4-17-12(h) states any finding or conclusion made in an action or proceeding concerning the award of unemployment benefits
This statute clearly precludes the use of unemployment proceedings in subsequent civil suits. Tony v. Elkhart Cnty., 918 N.E.2d 363, 369 (Ind.Ct.App.2009). But see Uylaki v. Town of Griffith, 878 N.E.2d 412 (Ind.Ct.App.2007) (concluding Uylaki's wrongful termination claim was collaterally estopped by the Review Board's determination that he was discharged for just cause, without mention of Indiana Code section 22-4-17-12(h)).
As the non-moving party, Warren carries the burden of persuading us the grant of summary judgment was erroneous. Hughley, 15 N.E.3d at 1003. Although we agree collateral estoppel does not apply to the breach of contract and defamation claims, we conclude Warren has failed to demonstrate the grant of summary judgment on these claims was otherwise improper. Warren makes no argument and provides no citations to designated evidence showing a genuine issue of material fact relevant to these claims. Accordingly, appellate review is waived, and we affirm the trial court's entry of summary judgment in favor of the School Board on the breach of contract and defamation claims. See Ind. Appellate Rule 46(A)(8)(a) (requiring each contention in the appellant's brief be supported by cogent reasoning and citations to relevant authority).
Warren contends the School Board provided inadequate notice of the date and time of the public meeting held after the executive session, thereby violating Indiana's Open Door Law, and the trial court erred by granting summary judgment in favor of the School Board on this claim. The School Board agrees the proceedings were subject to the requirements of the Open Door Law,
The purpose of the Open Door Law is to ensure government business be conducted openly so that the general public may be fully informed. Lake Cnty. Trust Co. v. Advisory Plan Comm'n of Lake Cnty., 904 N.E.2d 1274, 1279 (Ind. 2009). Indiana Code section 5-14-1.5-5(a) requires the governing body of a public agency to give "[p]ublic notice of the date, time, and place of any meetings, executive sessions, or of any rescheduled or reconvened meeting...." A "meeting" is defined as "a gathering of a majority of the governing body of a public agency for the purpose of taking official action upon public business." Ind.Code § 5-14-1.5-2(c). An "executive session" is defined as "a meeting from which the public is excluded, except the governing body may admit those persons necessary to carry out its purpose." Ind.Code § 5-14-1.5-2(f). A governing body may hold an executive session in certain instances provided by statute, Ind.Code § 5-14-1.5-6.1(b),
If final action is taken at any meeting of which notice is not given in accordance with Indiana Code section 5-14-1.5-5, an action may be filed by any person to declare the final action void. Ind.Code § 5-14-1.5-7(a)(3)(B). "The plaintiff need not allege or prove special damage different from that suffered by the public at large." Ind.Code § 5-14-1.5-7(a). In determining whether to declare a final action void,
Ind.Code § 5-14-1.5-7(d).
Here, the public notice stated the executive session would begin at 5:00 P.M. on December 20, 2012, and the "regular session" would begin at 7:00 P.M. "or immediately following the Executive Session, whichever comes later." Appellant's App. at 483. In fact, the public meeting began at approximately 2:30 A.M. the following day. Indiana Code section 5-14-1.5-5(h) provides,
We conclude the public notice did not satisfy the Open Door Law's notice requirement because the School Board convened the meeting at a time unreasonably departing from the time stated in the notice. Indiana Code section 5-14-1.5-5(a) requires public notice of the "date, time, and place of any meetings," and "whichever comes later" is not a concrete "time" from the public's perspective. The tentative start time was 7:00 P.M., but the meeting was held in the middle of the night, over seven hours later.
The School Board argues that even if it violated the Open Door Law, Warren's claim fails as a mere technical violation. We disagree. We are required to liberally construe the provisions of the Open Door Law in order to give effect to the legislature's intention that state business be conducted openly. Baker v. Town of Middlebury, 753 N.E.2d 67, 70 (Ind.Ct. App.2001) (citing Ind.Code § 5-14-1.5-1), trans. denied. The notice for the meeting did not comply with the requirements of the Open Door Law, and the violation both impaired public access to the meeting and affected the substance of the final action taken at the meeting. See Ind.Code § 5-14-1.5-7(d)(1). The School Board voted to cancel Warren's contract by a 4-0-3 vote, with three members abstaining. Had the meeting been timely held with proper notice, the designated evidence shows Warren would have attended and objected to two of the board members voting, both of whom voted in favor of her termination.
We also conclude the public interest would be served by voiding the final action taken at the meeting. As stated above, holding a public meeting at 2:30 A.M. is plainly contrary to the purpose of the Open Door Law. Moreover, despite the fact that board members claim they did not know where Warren was or assumed Warren did not want to attend the public meeting, the School Board's ongoing negotiations with Warren show the School Board knew Warren was in the building and wanted to be present for the meeting. Their failure to notify Warren that the executive session had concluded indicates they did not want Warren to attend to the public meeting. Whether deliberate or indifferent, the School Board's conduct was unreasonable and antithetical to legislature's intention that state business be conducted openly. And nothing in the record suggests voiding the vote would result in
During discovery, Warren filed a Motion to Compel Answers to Deposition Questions regarding communications that occurred during the School Board's executive session. The School Board asserted qualified privilege. The trial court denied the motion to compel, concluding "[Warren]'s argument that she should be able to obtain through discovery information from the executive session, although she and the rest of the public are otherwise specifically excluded from the executive session, fails." Appellant's App. at 196. Warren argues the trial court erred by denying her motion to compel.
We review discovery matters for an abuse of discretion. First of Am. Bank, N.A. v. Norwest Bank, Ind., N.A., 765 N.E.2d 149, 153 (Ind.Ct.App. 2002), trans. denied. An abuse of discretion occurs where the decision is against the logic and natural inferences to be drawn from the facts of the case. Davidson v. Perron, 756 N.E.2d 1007, 1012 (Ind. Ct.App.2001).
"If a communication is privileged, it is afforded the special protection of being undiscoverable." Popovich v. Ind. Dep't of State Revenue, 7 N.E.3d 406, 415 (Ind. T.C.2014) (citing T.R. 26(B)(1)). The Open Door Law permits public agencies to meet in executive session for limited purposes, but "the statute is silent as to whether discussions during executive sessions are privileged or whether persons present during an executive session can be barred from disclosing what occurred during an executive session." Gary Cmty. Sch. Corp. v. Lardydell, 8 N.E.3d 241, 245 (Ind.Ct.App.2014), trans. denied.
In Gary Community School Corporation, we held the trial court did not abuse its discretion by permitting a school board member to testify about a video she reviewed during an executive session of the school board, noting the trial court did not allow the school board member to testify to "communications" that occurred during executive sessions. Id. at 246. The school board member "only described what she saw in the video," which had not been disclosed to the opposing side during discovery. Id. In holding the trial court did not abuse its discretion, we did not reach the question of whether qualified privilege applied because the school board member "did not testify about any communications, litigation strategies, or any other matters that occurred during the executive sessions she attended." Id.
Likewise, the facts of the present case do not require us to decide whether discussions during executive sessions are privileged. See In re C.P., 563 N.E.2d 1275, 1277 (Ind.1990) ("[P]rivileges `are not lightly created nor expansively construed....'") (citation omitted). Warren contends she is entitled to know "the substance of the communications about her during the executive session" and "how the determination was reached to terminate her position." Brief of Appellant at 21.
The School Board's deliberations are not discoverable because "judicial inquiries into the private motivation or reasoning of administrative decisionmakers is a substantial intrusion into the functions of the other branches of government." Provisor, 669 N.E.2d at 409. Moreover, the Open Door Law specifically permits the exclusion of the public during executive sessions, which may be held in instances requiring candor or discretion. See Ind.Code § 5-14-1.5-6.1(b) (stating an executive session may be held to discuss matters such as pending or threatened litigation, school safety and security measures, an individual's misconduct, records classified as confidential by federal or state law, the appointment of a public official, or intelligence intended to prevent or respond to the threat of terrorism). Requiring school board members to testify about communications made during an executive session would frustrate the legislature's intent and "may well temper candor with a concern for appearances ... to the detriment of the decisionmaking process." Marion Cnty. Sheriff's Merit Bd. v. Peoples Broad. Corp., 547 N.E.2d 235, 238 n. 5 (Ind.1989) (quoting United States v. Nixon, 418 U.S. 683, 705, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)). The trial court did not abuse its discretion by denying Warren's motion to compel.
Although we agree administrative collateral estoppel does not apply in this case, we conclude Warren has waived appellate review of the trial court's grant of summary judgment on the breach of contract and defamation claims. On the Open Door Law claim we conclude the trial court erred by granting summary judgment in favor of the School Board. We reverse and remand for further proceedings on the Open Door Law claim. Finally, as for Warren's motion to compel, we conclude the information sought is not discoverable and affirm the trial court's denial of the motion to compel. We therefore affirm in part, reverse in part, and remand.
Affirmed in part, reversed in part, and remanded.
VAIDIK, C.J., and PYLE, J., concur.
Second, we note the applicability of administrative collateral estoppel does not turn on whether an agency ruling has actually been judicially reviewed. In Ghosh, 930 N.E.2d 23, the Indiana Department of Environmental Management ("IDEM") terminated Ghosh for an ethics code violation, and the State Employee Appeals Commission ("SEAC") affirmed the termination. Ghosh attempted to seek judicial review of the SEAC's decision, but his petition for judicial review was dismissed for failure to timely file the agency record. The Office of the inspector General filed a separate complaint against Ghosh with the State Ethics Commission, and our supreme court held Ghosh was collaterally estopped from challenging his termination in the subsequent proceeding before the State Ethics Commission. Because the IDEM's decision was reviewable by the SEAC and the SEAC's ruling was subject to judicial review, Ghosh had a fair opportunity to litigate the issue of his termination and was collaterally estopped from seeking further review.
Id. at 11-12.
