The Press-Dispatch
Issue link: https://www.ifoldsflip.com/i/359081
COMMUNITY OPEN HOUSE Monday, August 11 11:00 a.m. - 1:00 p.m. Amber Manor Care Center 801 East Illinois Street Petersburg, IN 47567 Free Community Event Tour Our New Private Suites Take a Box Lunch To-Go Contact us at 812-354-3001 for more information. David and Leah Capehart would like to thank all who donated time, money and energy to help send our daughter, Ivy, to Stanford University this summer: Jerry and Dorathy Traylor, Tom and Sany Talley, Mahoney Law Office, Jerry and Loreli Yon, Gary and Lynda Kinnaman, Paul and Mary Rhodes, Darrin and Amber McDonald, Don and Amy Bolin, Sara and Jerrod Cottingham, Libby and Mark Norrick, Melissa Goodpasture, Noah Schafer, Lisa Johnson, Clark Gray, Winter Fiscus, Marian Wiscaver, Rusty Cannon, Kerry Aldridge, Chad McClellan, Dallas and Katie Killian, Jeremy Britton, Kent and Lori Johnson, the Otwell Ruritan, the Missions Sunday School Class @ FBC, Carla Brown, the Tamalavics, Jody and JD Cummings, Jim and Kim Middleton, the Otwell Community Center, Mike and Robin Whaley, the Bishops, Mike and Mary Capehart, Melissa Claridge with 31, Jon and Mary Gartener, Donna and Dean Harris and many others! Pregnant... or think you are? Call:1-877-257-1084 or Locally Call: 1-812-354-2814 • Free pregnancy testing • Free counseling and info. on pregnancy options. • Confi dential counseling for women & men who are suff ering from post-abortion syndrome. • Residential Care • Health and assistance referrals. • Training and education. • Assistance in getting baby and maternity clothes washpcc@sbcglobal.net www.washingtonpregnancycenter.com 50th anniversary Paul and Karen Cooper, of Otwell, will be celebrat- ing their 50th wedding an- niversary on Saturday, Aug. 16. The couple was married at the Winslow General Bap- tist Church on Aug. 22, 1946, with Rev. J. T. Alvey officiat- ing. Their parents were the late Jerald and Virginia Coo- per, of Spurgeon, and Clar- ence and Imogene Inman, of Petersburg. The Coopers are parents of two sons, Bart ( Jill) Coo- per, of Algiers, and Barry Cooper, of Petersburg. They have three grandsons, Bar- rett, Blake and Brady. Paul retired from Ger- man American Bank after 41 years. Karen retired from the Pike County School Cor- poration. They are active in the Otwell United Method- ist Church. The couple is having an open house on Saturday, Aug. 16 from 2-4 p.m. at the fellowship hall of the Otwell United Methodist Church. Family and friends are in- vited to attend. The couple requests no gifts. Marriage Licenses Shawn Michael Deich, 33, of 104 E. Union St., Winslow, son of Roger Lee De- ich and Sandra Kay Schepers Deich, to Tina Marie Head, 45, of 104 E. Union St., Winslow, daughter of Carl LeRoy Phipps and Viola Irene Richards Phipps. Jeffrey Brian Bolin, 50, of 14137 A. CR 455, Clermont Fla., son of Donald Eugene Bolin and Carolyn May Sullivan Bolin, to Tammy Lynn Dahl, 43, of 409 Dorothy Circle, Bustics, Fla., daughter of Den- nis Bruce Dahl and Sandra Marie Mal- zac Maker. Stephen Burns, 32, of 1416 W. CR 50 S., Petersburg, son of Stephen Burns and Kathy Lance Brogan, to Alicia Brauneck- er, 21, of 1310 E. Cedar St., Petersburg, daughter of Alfred Braunecker, Sr. and Alice Dotterweich Braunecker. With this ring... lawsuit be summarily dis- missed, claiming that Fears' contract had been "lawfully terminated." In his ruling, Young noted that his review of an admin- istrative decision was limit- ed to determining wheth- er the decision "is support- ed by substantial evidence, that is not arbitrary and ca- pricious, and that the Board has complied with all rele- vant rules of law and proce- dure." "The court 'may not weigh the evidence nor adjudge the credibility of the wit- nesses, even if (the court) may have drawn a different conclusion,'" Young's ruling states. "The court may on- ly vacate the Board's deci- sion 'if the evidence, when viewed as a whole, demon- strates that the conclusions reached by the (Board) are clearly erroneous.'" In a discussion of Fears' breach of conflict claim, Young noted that it was al- leged that the Pike County School Corporation failed to comply with state law in re- gard to the procedures used to cancel his contract. "(Phillips) argues the PCSC failed to comply with this statutory man- date because the adminis- trative hearing, which be- gan at 5:00 p.m. on August 27, 2013, lasted far longer than was represented by PCSC's counsel," Young wrote. "The last witness for PCSC was Superintendent Blake, who took the stand at approximately 9:00 p.m. (Phillips) objected to the late hour, noting for the re- cord that it was not fair to expect the Board to be fully attentive. The hearing offi- cer determined the hearing should continue." "(Phillips) contends that, by the time Superinten- dent Blake's testimony had concluded, 'the hour was too late for continuation,'" Young continued. "Ergo, he was denied a reasonable op- portunity to challenge the Board." Young wrote that he had reviewed the entire tran- script of the proceedings and found that the statu- tory procedures were fol- lowed and that the hearing was fair. "Superintendent Blake was the last witness called by PCSC," Young wrote. "Immediately following her testimony, the hearing officer asked (Phillips) if he was ready to proceed. He re- sponded, 'We rest. It's their burden.'" "The fact that (Phillips) decided to rest his case rather than present witness- es or request a continuation of the proceedings speaks to a decision not to take ad- vantage of the opportunity to present witnesses and ev- idence," Young continued. "It does not suggest the ab- sence of opportunity to do so." Young also noted that Phillips complained that the hearing officer allowed hearsay evidence on two oc- casions "over his objection." "The first of these oc- curred during that part of Superintendent Blake's tes- timony in which she ques- tioned the reliability of (Fears') evaluations of his teachers," Young wrote. "To substantiate this point, PC- SC's counsel put before her the evaluation of one of Ot- well's teachers, which had already been admitted in- to evidence as Exhibit 9 - A, as a business record. Su- perintendent Blake noted that, although this partic- ular teacher was rated "ef- fective" in all categories, (Fears) rated her as "high- ly effective." "The second objection was raised when Superin- tendent Blake testified that some teachers had con- tacted the UniServ Direc- tor with the Indiana State Teachers Association seek- ing advice on whether to sign evaluations if they are 'not right,' and were told 'they should not sign' the evaluation form," Young continued. The hearing officer, Young noted, overruled Phillips' objection, stating that "hearsay is not auto- matically excluded under administrative hearings" and that "testimony of this nature should go to the weight of the evidence, not for the admissibility per se." "As observed by the hear- ing officer, hearsay is ad- missible in administrative hearings," Young wrote. "However, '(i)f hearsay ev- idence is properly objected to and does not fall within a recognized exception to the hearsay rule, the result- ing order may not be based solely upon the hearsay evi- dence.' Some corroborative evidence in support of the school board's decision is necessary." Both of Phillips' objec- tions, Young noted, fell within exceptions of the hearsay rule. "With regard to (Phil- lips') first objection, Ex- hibit 9 -A was previously ad- mitted under the business records exception, and was used to explain why Super- intendent Blake questioned the accuracy and reliabili- ty of (Fears') RISE evalua- tions," Young wrote. "With regard to (Phillips') second objection, Superintendent Blake's statement that some teachers had contacted the UniServ Director for advise and were told 'they should not sign' was not offered to prove the truth of the mat- ter asserted; instead, it was used as a means of explain- ing why Superintendent Blake informed the teach- ers they 'did not have to sign' the evaluation forms if they were not comfort- able doing so." In addition, Young noted that Phillips took issue with the board's Finding of Fact No. 25, which states: "In 2010, Mr. Fears re- quested his secretary to fal- sify the attendance records for fifteen (15) students by changing (sic) from absent to present in order to make Otwell School's attendance rate appear better. Upon the secretary's refusal to make such a change, Mr. Fears himself altered the records from absent to present." Young noted that Phil- lips argued that the finding of fact was "clearly errone- ous" for two reasons. "First, the secretary tes- tified she could not remem- ber if the students were ab- sent or not," Young wrote. "Second, to the extent (Fears) did in fact ask his secretary to falsify records, it occurred too long ago to be relevant to the present case." Young noted that the sec- retary testified that she had "refused" to change the at- tendance records dated May 28 -June 14, 2010, be- cause "it's not a moral thing to do." The questioning, Young wrote, continued as follows: Q. Okay. Did you know that (Fears) subsequently changed them? A. ... I had a suspicion, but I did not know for sure un- til I went back and looked at the percentage from the time that I last looked at the records the last day of school. Q. Okay. Was there any question in your mind that these students were, in fact, absent? A. Well, for me to remem- ber that, this – I cannot. "The court finds Finding of Fact No. 25 is not clear- ly erroneous," Young wrote. "The Board was entitled to believe her testimony, not- withstanding the fact that she could not remember which specific students were absent on a given day. Moreover, when shown Ex- hibit 8 -A on cross-exami- nation, the secretary testi- fied that it "says the records have been deleted," and that they were "changed by (Fears)." "The court further finds the Board was entitled to consider that evidence, not- withstanding the fact that it occurred more than three years before the hearing," Young added. "Evidence of dishonesty is relevant to (Fears') fitness to maintain his position as an adminis- trator." Notably, Young wrote, Phillips did not object to the board's Finding of Fact No. 26, which Young described as "equally as damning" as Finding of Fact No. 25: "(Fears) had also re- quested the secretary to al- ter and falsify attendance records by treating some students as "withdrawn" and then showing "new- ly enrolled" when they re- turned to school instead of "absent" so that Otwell's at- tendance record would be further improved. The Sec- retary refused to do so." Lastly, Young noted, Phil- lips complained that sub- stantial evidence did not support the Board's Conclu- sions of Law Nos. 3, 5, and 6, which read as follows: 3. Mr. Fears, Principal of the Otwell Elementary School, has neglected and ignored his duties to eval- uate teachers pursuant to the RISE program adopt- ed by the School Corpora- tion. The reports prepared are unreliable, often unsub- stantiated, and in some in- stances false. Such conduct constitutes neglect of duty. 5. Mr. Fears did violate the test disclosure results for iRead3 by disregarding the embargo and further re- leasing information know- ing that the same was not to be released except through Mr. Harding (the Assistant Superintendant). Mr. Fears further violated FERPA Guidelines by publicizing students' names and pass- ing grades. In addition, Mr. Fears requested an employ- ee to alter official records which would have resulted in a falsification of those records, and when the em- ployee refused to do so, he himself falsified the same. Such conduct exhibits a lack of trustworthiness that is inappropriate for a Princi- pal and Teacher in the Pike County School Corporation and constitutes other good and just cause. 6. The Board of Trustees concludes that a preponder- ance of the evidence does not support a cancellation of Mr. Fears' contract on the ground of Insubordina- tion, but that a preponder- ance of the evidence does support the cancellation of Mr. Fears' contract on the grounds of Neglect of Du- ty and Other Just and Good Cause. "Viewing the record as a whole, the court finds there is substantial evidence in the record supporting the Board's Conclusions of Law Nos. 3, 5 and 6," Young wrote. "Every witness who testified supported the Board's Conclusion of Law No. 3 that (Fears) failed to comply with the RISE pro- gram. The testimony of the School's Technical Di- rector, Mr. Clauss, and of Superintendent Blake was particularly persuasive." "With regard to Conclu- sion of Law No. 5, it is undis- puted that a picture of the third grade class was pub- lished in the local newspa- per, with their names, con- gratulating them on pass- ing the iRead 3 test," Young continued. "While it does not appear that grades were published, the Board found that 'while actual letter grades were not publicized (sic) the fact that all stu- dents passed is equivalent to a disclosure of grades.' Superintendent Blake tes- tified that the fact that the students' names were pub- lished 'cross the line.' On the surface, one could find this a trivial matter; howev- er, it was a technical viola- tion of FERPA." With regard to the falsi- fication of records, Young wrote, "the Board was en- titled to believe the testimo- ny of the School secretary." "In sum, the court finds the Board's decision was not arbitrary or capri- cious, was made within the bounds of the law, and was supported by substantial evidence,' Young conclud- ed. In regard to the employ- ment discrimination claim, Young noted that Fears al- leged that he was treated differently than other sim- ilarly situated administra- tors in the Pike County School Corporation. "The entire basis of this claim is premised on the belief that Superintendent Blake 'had an unspoken, undisclosed agenda for (Fears') termination, and the reasons she placed be- fore the board were pretex- tual,'" Young wrote. "The court is somewhat confused by this argument, as he has put forth no evidence that is a member of a protected class, a necessary element in any employment dis- crimination case. Nor has he produced any evidence that he was treated less fa- vorably than a similarly sit- uated individual outside of any protected class." "Indeed, the evidence demonstrates that Super- intendent Blake evaluat- ed all of her administra- tors the same way," Young continued. "Thus, while (Fears) believes that Su- perintendent Blake's 'entire demeanor and her testimo- ny was clearly acrimonious and biased as it related to (Fears),' personal animus, even if proven, does not state a claim for employ- ment discrimination." Young concluded: "The PCSC's decision to cancel (Fears') Teacher's Contract was lawful, fair, and supported by substan- tial evidence. It's motion for summary judgment is therefore GR ANTED." Hoffman released a state- ment on Thursday, July 31, saying that he agreed with Young's ruling. "Mr. Fears had a hear- ing (trial), where he was represented by counsel, evidence was received, witnesses were examined and cross-examined, ar- guments were presented, and a decision was made," Hoffman said. "That deci- sion has now been upheld by a neutral party – a fed- eral judge." H Fears' lawsuit dismissed Continued from page 1 The Press-Dispatch Wednesday, August 6, 2014 A-5