Laid-off DOC teachers get partial victory in appeal challenging protocol

The Indiana Department of Correction followed appropriate protocol when it laid off several institutional teachers in 2009, a divided Indiana Court of Appeals found Wednesday. The court did find, however, the DOC erred in the process of selecting those employees for re-employment in other positions.

In 2009, then-Gov. Mitch Daniels and the commissioner of the Department of Correction implemented “Facility Forward,” an initiative designed to increase efficiencies at state prisons by, among other efforts, replacing some DOC employees with private contractors.  As part of the initiative rollout, a group of employees including Debra Mills, Thomas Bird, Jay Matthews, Chris Weeks, Linda Rumple, Darrel Miller and Scott Gillenwater were informed that their positions as teachers at the Indianapolis Juvenile Correction Facility would be eliminated and replaced with university contracts.

Indiana’s State Personnel Act, which was in effect at the time the employees were notified of the layoffs, required a department head to notify the director of the State Personnel Department when layoffs were necessary. The SPD director would then compute the retention points of each employee based on a variety of factors, and those points were used to determine the order of layoffs, whether an employee was eligible to bump others in their department and the employees’ priority status on a re-employment list.

The DOC employees requested copies of their retention scores, but they were not provided until litigation commenced. In July 2009, the employees filed individual merit complaints, but the DOC advised them that it could not provide relief. The employees were terminated in August, and each of the employees opted to be placed on a re-employment list.

The employees then filed requests for administrative review by the Indiana State Employees’ Appeals Commission, and two years later they moved for summary judgment. An administrative law judge denied their motion in February 2012.

The DOC then moved for summary judgment, which the ALJ granted and denied in part. In March 2014, the ALJ denied and dismissed the employees’ merit complaints, prompting them to file an objection with the SEAC. In June 2014, the SEAC adopted the ALJ’s determination in its entirety.

After taking the issue to the Marion Superior Court, the trial court judge reversed and found in favor of the employees, finding that the layoff decisions were contrary to statute. The argument on appeal focused on former Indiana Code 4-15-2-32 as it was in effect at that time.

Specifically, former I.C. 4-15-2-32(a) contained the language requiring the SPD director to calculate retention points. Judge Patricia Riley, writing for a divided Indiana Court of Appeals, said in a Wednesday opinion that the record supports the ALJ’s findings that the DOC complied with that portion of the statute.

Similarly, the record also shows the DOC properly complied with former Section (b), which deals with “bumping” rights, Riley said, so the decision of the trial court was reversed in relation to those two sections.

However, the appellate panel agreed with the trial court on the issue of former Section (c), which requires employees who are laid off to be placed on a re-employment list, with positions on the list based on retention points. The employees contended that although they opted to go on a re-employment list, the list was never created.

While Riley disagreed with the contention that the list was never created or utilized, she wrote that the state failed to comply with the procedure for implementing the re-employment list. Two employees were offered re-employment ahead of other employees who had higher scores, the judge wrote, an error that was in violation of state code.

Thus, the case was remanded for a determination of whether some or all of the employees are entitled to damages based on the state’s failure to comply with former I.C. 4-15-2-32(c). Judge Terry Crone concurred and dissented in part, writing in a separate opinion that he dissented from the majority’s finding as to former I.C. 4-15-2-32(a).

The case is State of Indiana, Indiana Department of Correction, and Indiana State Employees’ Appeals Commission v. Debra Mills, et al, 49A02-1605-PL-998.