                                                                                              Dec 30 2015, 8:43 am




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Daniel L. Brown                                          Douglas A. Hoffman
      Daniel L. Brown Law Office, P.C.                         Jeremy M. Dilts
      Salem, Indiana                                           Carson Boxberger LLP
                                                               Bloomington, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Risha D. Warren,                                         December 30, 2015
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               59A01-1506-PL-617
              v.                                               Appeal from the Orange Circuit
                                                               Court
      Board of School Trustees of the                          The Honorable John Evans,
      Springs Valley Community                                 Special Judge
      School Corporation,                                      Trial Court Cause No.
      Appellee-Defendant                                       59C01-1301-PL-26




      Robb, Judge.



                               Case Summary and Issues
[1]   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.


      Court of Appeals of Indiana | Opinion 59A01-1506-PL-617 | December 30, 2015          Page 1 of 21
      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.



                            Facts and Procedural History
[2]   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




      Court of Appeals of Indiana | Opinion 59A01-1506-PL-617 | December 30, 2015   Page 2 of 21
      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.


[3]   On November 26, the school principal provided Warren with notice of the

      school’s preliminary decision to terminate her employment. See Ind. Code § 20-

      28-7.5-2 (outlining the procedure for canceling a teacher’s contract). The notice

      cited a school rule providing for the immediate suspension or dismissal of an

      employee who has engaged in “threats and/or acts of violence, fighting or

      attempting bodily injury to another while on school property or school

      sponsored functions.” Appellant’s App. at 467. Warren requested a private

      conference with Superintendent Todd Pritchett, which was held two days later

      on November 28. The following day, Superintendent Pritchett issued a written

      recommendation to the School Board that Warren’s employment be

      terminated.


[4]   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,

              Pursuant to IC 20-28-7.5-2, and your timely made written request
              for a private conference with the School Board, the Board of
              School Trustees of Springs Valley School Corporation will confer
              with you at a private conference to be held at an Executive
              Session of the School Board beginning at 5:00 p.m. on Thursday,
              December 20, 2012, at the Springs Valley Learning Center
              located at 479 South Larry Bird Blvd., French Lick, Indiana
              47432. A special meeting of the Board will be held following the
              Executive Session. After the private conference, and at a special
              meeting of the Board, the Board of School Trustees is expected to
      Court of Appeals of Indiana | Opinion 59A01-1506-PL-617 | December 30, 2015   Page 3 of 21
              make a determination as to your status as a teacher at the Springs
              Valley Elementary School.


      Id. at 471.


[5]   In addition, the School Board gave the following public notice of the meeting:

              SPRINGS VALLEY SCHOOL CORPORATION
              Board of School Trustees
              Special School Board Meeting

              EXECUTIVE SESSION
                DATE: December 20th, 2012
                TIME: 5:00 P.M.
                PLACE: Springs Valley Learning Center

                  AGENDA
                   1) To receive information concerning the alleged
                      misconduct of an individual over whom the governing
                      body has jurisdiction.
                   2) To discuss, before a determination, the individual’s status
                      as an employee.

              REGULAR SESSION
                DATE: December 20th, 2012
                TIME: 7:00 P.M. or immediately following the Executive
                       Session, whichever comes later
                PLACE: Springs Valley Learning Center

                  AGENDA
                   1) Meeting called to order
                   2) Opportunity for Public to Address the Board
                   3) Personnel
                   4) Old and Unfinished Business
                   5) New Business
                   6) Adjournment

      Court of Appeals of Indiana | Opinion 59A01-1506-PL-617 | December 30, 2015   Page 4 of 21
      Id. at 483.


[6]   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. After the

      private conference, the School Board retired to deliberate. During

      deliberations, Warren, Kendall, and Steele waited in a separate room down the

      hall. At some point, the School Board’s attorney entered the room where

      Warren was waiting “to offer her a package that would have allowed her to

      keep her position.” Id. Warren made a counteroffer and “remained in the

      room down the hall, expecting to hear again from the school board attorney.”

      Id. Deliberations continued for hours, but Warren did not receive another offer

      from the School Board. Warren requested the public meeting portion be

      rescheduled due to the length of the proceedings and the lateness of the hour,

      but she did not receive a response. Then, at approximately 2:30 A.M., Warren

      noticed through a window that cars were leaving the parking lot outside.


[7]   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



      Court of Appeals of Indiana | Opinion 59A01-1506-PL-617 | December 30, 2015   Page 5 of 21
       485. The motion to terminate Warren’s contract “passed by the vote of 4-0-3,”

       with three board members abstaining. Id.


[8]    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.


[9]    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).


[10]   Warren also filed a complaint alleging violations of Indiana’s Open Door Law.

       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


       Court of Appeals of Indiana | Opinion 59A01-1506-PL-617 | December 30, 2015   Page 6 of 21
       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.


[11]   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 for summary judgment on May 26, 2015. 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 the breach of contract claim. This appeal followed.



                                  Discussion and Decision
                                      I. Summary Judgment
                                        A. Standard of Review
[12]   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


       Court of Appeals of Indiana | Opinion 59A01-1506-PL-617 | December 30, 2015   Page 7 of 21
       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).


                                        B. Collateral Estoppel
[13]   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:

               1) whether the issues sought to be estopped were within the
               statutory jurisdiction of the agency;

       Court of Appeals of Indiana | Opinion 59A01-1506-PL-617 | December 30, 2015   Page 8 of 21
                2) whether the agency was acting in a judicial capacity;

                3) whether both parties had a fair opportunity to litigate the
                issues;

                4) whether the decision of the administrative tribunal could be
                appealed to a judicial tribunal.


       McClanahan, 517 N.E.2d at 394. If any element is absent, collateral estoppel

       does not apply. See id.


[14]   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.1 We disagree. The issues Warren raises in the

       present case were not adjudicated in the unemployment proceeding, which was

       solely concerned with the existence of just cause. See Ind. Code § 22-4-15-1




       1
         The School Board contends it is “relying on the facts found to be true by this Court,” as opposed to the
       Review Board, and that this court “determined that Ms. Warren did, in fact, threaten to kill a student and
       that Springs Valley’s termination of Ms. Warren was justified.” Brief of Appellee at 6 (emphasis in original).
       We first note this court merely reviews factual findings. In the context of unemployment benefits, we review
       findings of basic fact for substantial evidence and findings of ultimate fact for reasonableness. Benard v.
       Review Bd. of Ind. Dep’t of Workforce Dev., 997 N.E.2d 1077, 1080 (Ind. Ct. App. 2013). If supported by the
       evidence, the findings of the Review Board are binding on this court. Id.; Ind. Code § 22-4-17-12(a).
       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.

       Court of Appeals of Indiana | Opinion 59A01-1506-PL-617 | December 30, 2015                        Page 9 of 21
       (stating an employee is ineligible for unemployment benefits if she was

       discharged for “just cause”). Whether the School Board breached Warren’s

       teacher contract is not the same issue as whether the School Board had just

       cause to discharge Warren. Likewise, whether the School Board defamed

       Warren involves different concerns than the existence of just cause, and the fact

       that the School Board had just cause does not excuse noncompliance with

       Indiana’s Open Door Law. These issues are not the same as the issue

       previously adjudicated. See Bartholomew Cnty., 14 N.E.3d at 811 (concluding

       the issue of whether a sheriff’s deputy was discharged for “just cause” was not

       collaterally estopped by the county merit board’s determination that he was

       discharged for “cause” under Indiana Code section 36-8-10-11(a)).


[15]   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

               shall not be used as evidence in a separate or subsequent action
               or proceeding between an individual and the individual’s present
               or prior employer in an action or proceeding brought before an
               arbitrator, a court, or a judge of this state or the United States
               regardless of whether the prior action was between the same or
               related parties or involved the same facts.


       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

       Court of Appeals of Indiana | Opinion 59A01-1506-PL-617 | December 30, 2015   Page 10 of 21
       the Review Board’s determination that he was discharged for just cause,

       without mention of Indiana Code section 22-4-17-12(h)).2


[16]   Administrative collateral estoppel does not apply in this case. The trial court

       erred in concluding Warren’s breach of contract claim is collaterally estopped

       by our decision 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).


                           C. Breach of Contract and Defamation
[17]   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




       2
         Indiana Code section 22-4-17-12(h) was added in 1995. Pub. L. No. 21-1995. But even prior to the
       enactment of this provision, we recognized the informality of unemployment proceedings counseled against
       their use in subsequent civil actions. In Cox v. Ind. Subcontractors Ass’n, Inc., 441 N.E.2d 222, 226 (Ind. Ct.
       App. 1982), Cox filed suit against his former employer, alleging breach of contract and several tort claims.
       We held the Review Board’s determination that Cox was discharged for just cause did not collaterally estop
       Cox’s claims because the Review Board is “not the proper authority to determine complex legal issues
       involving contract interpretation and tort issues. . . .” Id. “It is designed to administer unemployment
       benefits,” we explained, and “lacks the requisite training and experience” to determine other matters. Id.; see
       also McClanahan, 517 N.E.2d at 395 (stating the “relative informality” of unemployment proceedings,
       “designed for quick and inexpensive determinations,” precluded the application of collateral estoppel in a
       wrongful discharge action because the parties did not have a fair opportunity to litigate the issues).

       Court of Appeals of Indiana | Opinion 59A01-1506-PL-617 | December 30, 2015                       Page 11 of 21
       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).


                                            D. Open Door Law
[18]   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, 3 but

       the School Board argues the notice was adequate and “specific in notifying the

       public that the public session would occur immediately following the executive

       session.” Br. of Appellee at 8.


[19]   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




       3
         The Open Door Law requires “all meetings of the governing bodies of public agencies . . . be open at all
       times for the purpose of permitting members of the public to observe and record them.” Ind. Code § 5-14-1.5-
       3(a). A “public agency” includes any school corporation “by whatever name designated, exercising in a
       limited geographical area the executive, administrative, or legislative power of the state or a delegated local
       governmental power.” Ind. Code § 5-14-1.5-2(a)(2).

       Court of Appeals of Indiana | Opinion 59A01-1506-PL-617 | December 30, 2015                      Page 12 of 21
       . . . .” 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),4 but “final action must be taken

       at a meeting open to the public.” Ind. Code § 5-14-1.5-6.1(c). “Final action”

       refers to “a vote by the governing body on any motion, proposal, resolution,

       rule, regulation, ordinance, or order.” Ind. Code § 5-14-1.5-2(g).


[20]   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,

                [A] court shall consider the following factors among other
                relevant factors:

                         (1) The extent to which the violation:
                               (A) affected the substance of the policy, decision, or



       4
         In the present case, the executive session was held “to receive information concerning [an] individual’s
       alleged misconduct . . . and . . . to discuss, before a determination, [an] individual’s status as an employee
       . . . .” Ind. Code § 5-14-1.5-6.1(b)(6).

       Court of Appeals of Indiana | Opinion 59A01-1506-PL-617 | December 30, 2015                         Page 13 of 21
                                final action;
                                (B) denied or impaired access to any meetings that
                                the public had a right to observe and record; and
                                (C) prevented or impaired public knowledge or
                                understanding of the public’s business.


                        (2) Whether voiding of the policy, decision, or final action
                        is a necessary prerequisite to a substantial reconsideration
                        of the subject matter.


                        (3) Whether the public interest will be served by voiding
                        the policy, decision, or final action by determining which
                        of the following factors outweighs the other:
                               (A) The remedial benefits gained by effectuating the
                               public policy of the state declared in [Ind. Code § 5-
                               14-1.5-1].
                               (B) The prejudice likely to accrue to the public if the
                               policy, decision, or final action is voided, including
                               the extent to which persons have relied upon the
                               validity of the challenged action and the effect
                               declaring the challenged action void would have on
                               them.

                        (4) Whether the defendant acted in compliance with an
                        informal inquiry response or advisory opinion issued by
                        the public access counselor concerning the violation.


       Ind. Code § 5-14-1.5-7(d).


[21]   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.”




       Court of Appeals of Indiana | Opinion 59A01-1506-PL-617 | December 30, 2015   Page 14 of 21
       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,


               Notice has not been given in accordance with this section if a
               governing body of a public agency convenes a meeting at a time
               so unreasonably departing from the time stated in its public
               notice that the public is misled or substantially deprived of the
               opportunity to attend, observe, and record the meeting.


[22]   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.5 Undoubtedly, the




       5
         The Office of the Public Access Counselor and Office of the Indiana Attorney General maintain a
       “Handbook on Indiana’s Public Access Laws,” which offers guidance on the Open Door Law’s
       requirements. Office of the Public Access Counselor & Office of the Indiana Attorney General, Handbook
       on Indiana’s Public Access Laws 5-22 (2011), available at http://www.in.gov/pac/files/pac_handbook.pdf.
       Although the opinion of the Attorney General is not binding on this court, McPeek v. McCardle, 888 N.E.2d
       171, 177 n.4 (Ind. 2008), we would note the Handbook states that a notice indicating a public meeting will be
       held “after the executive session,” is “not proper notice because it does not provide the time the meeting is
       scheduled to begin.” Id. at 10. In addition, the Handbook includes the following example relevant to the
       case before us:
             May a meeting be set at any time?
               The [Open Door Law] does not define any particular time for a meeting as inappropriate.
             However, a public agency may not delay the start of a meeting to the extent the delay frustrates
             the public’s right to attend and observe the agency’s proceedings.
             ***
             Example 2: A town board gives notice of an executive session for 4:30 p.m., with a public
             meeting to follow at 5:00 p.m. The board does most of its work in executive session and
             convenes the public meeting four hours late, at 9:00 p.m. This is contrary to the [Open Door


       Court of Appeals of Indiana | Opinion 59A01-1506-PL-617 | December 30, 2015                     Page 15 of 21
       lateness of the hour substantially deprived the public of the opportunity to

       attend. The fact that several members of the public nonetheless attended does

       not alter our conclusion. Holding a public meeting at 2:30 A.M. is

       unreasonable and contrary to the purpose of the Open Door Law.


[23]   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.6




              Law] because the delay may have frustrated the public’s right to attend, observe and record the
              public meeting.
       Id. at 11-12.
       6
        Warren would have objected to Ralph Purkhiser voting because he appeared to be sleeping during the
       private conference portion of the proceedings. She would have objected to Kevin Allstot voting based on a
       potential conflict of interest created by his wife’s employment within the Springs Valley School Corporation.

       Court of Appeals of Indiana | Opinion 59A01-1506-PL-617 | December 30, 2015                     Page 16 of 21
[24]   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 prejudice to the public that would

       outweigh the remedial benefits gained by requiring the School Board to comply

       with the law. See Ind. Code § 5-14-1.5-7(d)(3). The trial court erred by granting

       summary judgment in favor of the School Board on this claim. 7


                                       II. Motion to Compel
                                        A. Standard of Review
[25]   During discovery, Warren filed a Motion to Compel Answers to Deposition

       Questions regarding communications that occurred during the School Board’s




       7
        Having concluded the trial court erred by granting summary judgment in favor of the School Board on
       Warren’s Open Door Law claim, we need not address whether the trial court erred by granting the School
       Board’s motion to strike Warren’s supplemental designations. The issue is moot.

       Court of Appeals of Indiana | Opinion 59A01-1506-PL-617 | December 30, 2015                 Page 17 of 21
       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.


[26]   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).


                             B. Deliberations of Decisionmakers
[27]   “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.


[28]   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

       Court of Appeals of Indiana | Opinion 59A01-1506-PL-617 | December 30, 2015   Page 18 of 21
       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.


[29]   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. Her discovery request goes to deliberative processes of the

       School Board and its members, and our supreme court has recognized a

       “general bar against probing the mental processes involved in administrative

       decision-makers’ deliberations.” Med. Licensing Bd. of Ind. v. Provisor, 669

       N.E.2d 406, 409 (Ind. 1996); see also Baseball, Inc. v. Ind. Dep’t of State Revenue,

       672 N.E.2d 1368, 1376 (Ind. Ct. App. 1996) (holding a discovery request

       constituted “an impermissible probe into the hearing officer’s decision-making

       process” where the defendant “sought the testimony of the hearing officer


       Court of Appeals of Indiana | Opinion 59A01-1506-PL-617 | December 30, 2015   Page 19 of 21
       because she was ‘the only person who [could] articulate the basis for each

       finding of fact’”) (alteration in original), trans. denied; Popovich, 7 N.E.3d at 416

       (distinguishing the existence of an evidentiary privilege from the “general bar

       against probing the mental processes involved in administrative decision-

       makers’ deliberations”) (citation omitted).


[30]   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 (1974)).

       The trial court did not abuse its discretion by denying Warren’s motion to

       compel.


       Court of Appeals of Indiana | Opinion 59A01-1506-PL-617 | December 30, 2015   Page 20 of 21
                                               Conclusion
[31]   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.


[32]   Affirmed in part, reversed in part, and remanded.


       Vaidik, C.J., and Pyle, J., concur.




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