"They just don't get it": School continues to hide explanation for football coach suspension

Rick Wimmer, Fishers High School football coach. (WTHR Photo)
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FISHERS, Ind. (WTHR) - Hamilton Southeastern Schools is still refusing to explain why it suspended the head football coach at Fishers High School, ignoring advice from Indiana’s public records agency and frustrating the state’s top official overseeing public access issues.

“I’m not sure why they’re doing what they’re doing, but clearly they just don’t get it,” said Indiana Public Access Counselor Luke Britt.

Britt is responding to HSE’s latest decision to withhold information that, according to state law, must be released to the public. Just a few weeks ago, Britt’s office issued a formal opinion that found HSE’s actions “to be a violation of the spirit and intent of Indiana Code.” But rather than obeying the law and providing basic facts to explain the discipline taken against its football coach, HSE instead chose to double down on its secret – a move that may ultimately backfire, according to the Public Access Counselor.

Coach makes headlines off the field

Rick Wimmer, Fishers High School football coach
Photo of Rick Wimmer from Fishers High School athletics website.

The controversy began last fall, when Fishers High School football coach Rick Wimmer was involved in a classroom altercation with a student.

WTHR reported in September that Wimmer was laced on paid administrative leave following the incident. According to a police report, a FHS student arrived late to class and refused instructions from Wimmer to move to the back of the classroom. Police say that's when the longtime coach placed his hands on the student's shoulder and upper chest. The entire incident lasted about five seconds, according to police - but long enough for both the school district and Fishers Police to investigate.

The police department quickly announced there would be no charges. The school district reinstated the coach after he served approximately eight days of paid leave. He was also sidelined for two of his team’s football games during the investigation. Following the reinstatement, the school district said it would have no further comment, and the situation appeared to be over.

But three months later, at its final board meeting of 2016, the HSE school board issued Wimmer an unpaid suspension. The move went unnoticed for weeks, because the school board’s agenda did not list Wimmer by name. It mentioned him only as “Employee #10042,” referencing his employee identification number.

When WTHR asked HSE to explain the suspension, superintendent Allen Bourff told 13 Investigates that Wimmer was suspended “due to not implementing instructions for classroom management strategies.” The school also provided a copy of Board of School Trustees Policy G02.06, which requires staff to “demonstrate behaviors which contribute toward an appropriate school atmosphere.” HSE would not elaborate on the actual facts of the incident, nor would it confirm whether the school board’s suspension vote in December was related to the classroom incident reported in September or for a separate incident that occurred later.

Indiana's Access to Public Records Act allows public agencies, including school districts, to keep most information in their employees' personnel files confidential. But some limited personnel information must be released when a public agency chooses to fire or suspend an employee. In that situation, a school district must release "the factual basis for a disciplinary action in which final action has been taken and that resulted in the employee being suspended, demoted or discharged."

Despite multiple requests, HSE repeatedly declined to reveal a factual basis for Wimmer’s unpaid suspension, so WTHR filed a complaint with the Public Access Counselor.

State rejects school’s claims

In his initial advisory opinion, Britt acknowledged that schools walk a fine line between protecting sensitive employee information and providing information to the public. But his 4-page report issued this spring was critical of HSE for not providing transparency involving Wimmer's suspension. While ‘factual basis’ is not defined in state law, Britt said the school district's response to WTHR clearly leaned toward "lacking sufficient detail."

"A reader of a factual basis should have some tangible indication as to why a public employee is disciplined," Britt wrote. "Factual basis contemplates at least a fact. I would argue that a fact equates to a detail specific to an incident or set of incidents… I trust HSE will take these considerations under advisement and craft a factual basis which strikes a balance between employee-student privacy expectations and a reasonably transparent description of what actually took place."

But HSE did not heed the Public Access Counselor’s advice. Following Britt's opinion, HSE again denied WTHR's request for a factual basis that would better explain Wimmer's week-long, unpaid suspension. So WTHR again appealed to the state for help, alleging HSE violated the Indiana Access to Public Records Act by knowingly withholding facts involving Wimmer’s unpaid suspension at Fishers High School.

This time, Britt was much more stern in his findings.

“Taxpayers who pay their salaries have the right to know, to a certain extent, when a public employee has misbehaved and how”

In a new advisory opinion released in late May, Britt indicated he had lost patience with HSE's continued decision to hide information to which the public is entitled.

"Public school employees, including teachers, coaches, administrators, superintendents and school board members work for and on behalf of the public at large. They are servants of the people. Therefore it stands to reason the taxpayers who pay their salaries have the right to know, to a certain extent, when a public employee has misbehaved and how," Britt wrote. "I consider the non-compliance of my recommendation ... to be a violation of the spirit and intent of Indiana Code."

In his May 30 opinion, the Public Access Counselor also rejected the school district's argument that federal law required it to withhold information about Wimmer's discipline to protect employee and student privacy.

"I am inclined to agree with [WTHR] that HSE is conveniently using [federal law] to avoid releasing any facts at all surrounding the employee suspension to protect an unrecognized and overprotective notion of public employee privacy," said Britt, who consulted with other state agencies in reaching his decision. "I have discussed this matter with the Indiana Department of Education. While it recognizes the importance of student privacy (as does this Office), it does not consider the release of a factual basis for employee discipline to be a compromise of student privacy if the student is not identified."

WTHR has made no request for HSE to release the name of any student involved in a situation that resulted in the football coach's suspension.

School doubles down on its secret

Britt, who is appointed by the governor to oversee compliance with the state’s open access and public records laws, hoped his written opinion would send a clear message to HSE -- as well as other schools and government agencies throughout Indiana.

"My hope is the opinion encourages all public agencies to recognize the stewardship owed by public employees to taxpayers. In my experience, secrecy fosters more distrust than plain speaking and transparency," Britt told WTHR.

But weeks later, Hamilton Southeastern Schools continues to ignore the Public Access Counselor’s recommendations. In fact, the school district’s private legal firm recently sent a letter to WTHR’s attorney that attempts to contradict the findings of the state.

“We confirmed with the Public Access Counselor that he found no violation of the Indiana Access to Public Records Act…” wrote Seamus Boyce, hired by HSE to defend the school district’s attempts to withhold information about the coach’s discipline. “Given the Public Access Counselor has found no violation of Indiana Code, HSE has no obligation to supplement the information already provided.”

“Wow. It’s hard to understand how anyone could read my opinions and come away with that interpretation,” a surprised Britt told WTHR, after seeing a copy of HSE’s letter. “I think the opinions speak for themselves. They are really missing the point.”

The Public Access Counselor confirmed HSE’s legal counsel contacted him several times to discuss the most recent formal opinion.

“Make no mistake, they are violating the spirit and the intent of the law”

“He’s always been concerned with whether a definitive violation is coming out of my office and, in this situation, because 'factual basis' is not defined [in state law], I don't think I have the discretion to make that determination. But make no mistake, they are violating the spirit and the intent of the law," Britt told WTHR. "When they say a definitive statement like 'There is no violation' and get caught up on the formal violation part of it, they are totally missing the bigger picture. I think I was very clear what my interpretation of the law is. I was very clear on my expectations and what they need to do, and they ignored my opinion. Why they chose to do that, I really don't know. But to come back and say ‘I found no violation,’ I strongly disagree with that interpretation."

Adding emphasis to his written opinions, Britt reiterated his belief that Indiana law is clear when applied to the discipline involving the Fishers football coach: HSE must provide enough basic facts so that taxpayers, who are paying Wimmer's salary, know why the coach was actually disciplined.

“I certainly made a strongly worded recommendation to provide more detail in that factual basis, but they chose to go in a different direction,” Britt told WTHR during an interview in his state office. Asked if he was frustrated by the school district’s lack of transparency, the Public Access Counselor did not hide his emotions.

“Yeah, it’s hard not to be frustrated,” he said. “When something like this happens, the public has the right to know.”

Mounting legal bills are secret, too

Rick Wimmer

But the mystery surrounding Wimmer's suspension has now dragged on for months -- and taxpayers are footing the bill.

More than four weeks ago, 13 Investigates asked HSE to show much money it has paid in legal bills involving the football coach’s discipline and related public records requests. So far, HSE has not released that information, either. If the case goes to court, the costs will keep rising as the school district continues to hide information that, according to state law and the Public Access Counselor, must be released to the public.

Opinions from the Public Access Counselor are advisory and intended to provide guidance. Anyone who is improperly denied a public record after seeking an opinion from the Public Access Counselor can then file a lawsuit to further compel the release of information. If the litigation is successful, a judge can also order a public agency to reimburse a complainant for attorney’s fees.

In its recent letter to Eyewitness News, the school district’s attorney attempted to discourage WTHR from filing such a lawsuit by suggesting the information 13 Investigates is seeking to report to the public does not exist in the form of a document:

"[Indiana Code] states a 'person who has been denied the right to inspect or copy a public record may…file an action to…compel the public agency to permit the person to inspect and copy the public record.' (emphasis added.) It does not appear that [WTHR] is seeking the ability to inspect or copy a public record."

HSE Letter to Mike Wilkins Broyles Re APRA Request by WTHR on Scribd

After reading that statement, the Public Access Counselor again voiced disagreement with HSE’s interpretation of Indiana law, explaining that the school district must publicly release facts surrounding Wimmer’s unpaid suspension even if HSE has not written those details down on paper.

“There are few instances that actually require an agency to create a record. This is an exception,” Britt told WTHR. “The law requires an agency to create a document with a factual basis. I think you have been denied that information, and you have standing in a court of law based on that.”

Wimmer is now starting his 12th season as the head football coach at Fishers High School. Earlier this year, he told 13 Investigates he does not want to discuss the discipline that the school board issued against him.

"I'd really rather not comment on it. It's kind of a done deal. It's behind us now," the coach told WTHR by phone in January. "They did what they felt they needed to do. They have to put things in public to a degree, but they can also protect people if they choose to. From my perspective, it's over."