FOR PUBLICATION

ATTORNEYSs FOR APPELLANT:	ATTORNEY FOR APPELLEE:

JEFFREY A. MODISETT	KENNETH J. FALK

Attorney General of Indiana	Indiana Civil Liberties Union

	Indianapolis, Indiana

JANET BROWN MALLETT

Deputy Attorney General

Indianapolis, Indiana

	IN THE

	COURT OF APPEALS OF INDIANA

SUELLEN REED, individually and in her         		)	

official capacity as Indiana Sstate Superintendent	)

of Public Instruction,	)

			)

	Appellant-Defendant,	)

			)

		vs.	)	No.  49A02-9807-CV-598

			)

GEOFFREY F. SCHULTZ,	)

			)

	Appellee-Plaintiff.	)

	APPEAL FROM THE MARION SUPERIOR COURT

	The Honorable Steven Eichholtz, Special Judge

	Cause No.  49D05-9701-CP-95

	(HanddownAugustAugust 20, 1999 Date)

	OPINION - FOR PUBLICATION

RUCKER, Judge

	When Indiana Superintendent of Public Instruction Suellen Reed summarily removed Dr. Geoffrey F. Schultz from his position as a Special Education Hearing Officer, he filed

suit asserting  entitlement to a pre-termination due process hearing.  The trial court agreed and

granted partial summary judgment in Dr. Schultz'ss favor.  In so doing, the trial court

remanded the matter to the Superintendent for a determination of just cause.  The

Superintendent now appeals contending the trial court erred because (1) Dr. Schultz had no

property right protected by the due process clause and thus was not entitled to a pre-

termination hearing, (2) even if Dr. Schultz were so entitled, the Rule 56 materials show that

he was removed for just cause, and (3) the Superintendent is entitled to qualified immunity

for any claim of damages.  Dr. Schultz cross appeals contending (1) the trial court erred in

remanding this matter for a determination of just cause in that the Rule 56 materials show

there was none, and (2) the trial court erred in not making a determination that Dr. Schultz

was at least entitled to nominal damages.  We address a single dispositive issue which we

phrase as:  did the existence of Dr. Schultz's name on a list of available hearing officers rise

to the level of a constitutionally protected property interest such that his name could not be

removed therefrom without a hearing.

Background

	Both federal and Indiana law guarantee a free and appropriate education for disabled

children.1  The law aims to provide a disabled child with an educational program in the least restrictive setting possible given the child's disabilities.  Accordingly, a public school is required to (i) determine whether a child is disabled under the applicable laws, (ii) develop

individual educational programs for each disabled child, and (iii) offer support services that

will allow the child to benefit from the education.2  Generally, the cost of the education is the responsibility of the child's local public school.3  If the child's disabilities require expenses beyond those of children of the same age and grade level in the child's school corporation,

then the State Department of Education assumes responsibility for payment.4  When a child's parents or guardians disagree with a school's assessment of a child's disability or decision

regarding the implementation of an educational program, they have the right to an impartial

due process hearing before an independent hearing officer.  A party may appeal an adverse

judgment of the hearing officer to the Board of Special Education Appeals.5  Judicial review is then available.6  

	Federal and state law forbid the independent hearing officer from being an employee

of the public agency involved in the education or care of the child.7  Selection of an independent hearing officer in Indiana is governed by 511 I.A.C. 7-15-5, which provides in

pertinent part:

(c) A request for a due process hearing and the appointment of an independent

hearing officer shall:

(1) be in writing and signed;

(2) be filed simultaneously with the other parties or their agents

and the state superintendent of public instruction; and

(3) specify the reasons for the hearing request.

(d) The state superintendent of public instruction shall appoint the independent

hearing officer.  When a due process hearing request is received, the public

agency and the parent will be sent a written notice of the name of the

independent hearing officer who has been assigned to the matter.

(e) A person who may be appointed as an independent hearing officer shall:

(1) be trained in the due process hearing procedure;

(2) have no personal or professional interest that would conflict

with the person's objectivity in the hearing; and

(3) not be an officer, employee, or agent of the public agency,

the department of education, or any other agency that may be

involved in the education or care of the student.

(f) A person who otherwise qualifies as a hearing officer is not considered an

employee of the agency solely because the person is paid by the agency to

serve as a hearing officer.  The division of special education and the public

agencies shall maintain a current listing of the persons who serve as hearing

officers, including information on the qualifications of those persons.   

Facts and Procedural History

	In 1992, then Superintendent of Public Instruction H. Dean Evans placed Dr. Schultz

on a  list of persons from which the Superintendent would select independent hearing officers. 

Evans informed Dr. Schultz that he would remain on the list for a period of one year. 

Following the one-year period, newly elected Superintendent of Public Instruction Suellen

Reed notified Dr. Schultz that he would remain on the list for an additional year.  In March

1995, tThe Superintendent sent Dr. Schultz a letter informing him that she was re-appointing Dr. Schultz as a hearing officer for an additional two-year period beginning March 1, 1995,

and ending March 1, 1997.

  	In 1996, Dr. Schultz presided over a hearing in case No. 881-96.  In that case, the

parents of a student sought reimbursement from the State Department of Education for

educational expenses they had incurred.  Dr. Schultz decided the case in the parents' favor

and ordered the Department to reimburse the parents $121,021.12 based on his finding that

special education laws had been violated.  The Department appealed Dr. Schultz's decision

to the Board of Special Education Appeals.  The Board of Special Education reversed Dr. Schultz's decision.  At

the conclusion of the hearing, the Board expressed concerns regarding Dr. Schultz's handling

of the case and directed its attorney, Joel Hand, to contact Dr. Schultz.  In a letter dated

August 27, 1996, Hand informed Dr. Schultz that the Board found several of his findings of

fact to be inaccurate in that they were not supported by the evidence and referred to incorrect

dates.  Hand also informed Dr. Schultz that when writing conclusions of law, it was

inappropriate for a hearing officer to make arguments for or against a party or to express his

or her personal feelings about a case.  Hand further informed Dr. Schultz that the Board felt

he may have exceeded the scope of his role as an independent hearing officer by attempting

to define "educationally related services" rather than complying with the definitions provided

in Article 7 of the Indiana Administrative Code.  Hand served a copy of the letter on

Superintendent Reed.  On September 4, 1996, the Superintendent sent Dr. Schultz a letter

informing him that she had received a copy of Hand's August 27, 1996, letter and was directing the Division of Special Education to remove Dr. Schultz from the list of available

hearing officers.

	On December 16, 1996, Dr. Schultz filed a complaint under 42 U.S.C. § 1983 alleging

that his right to due process of law had beenwas violated because the Superintendent did not

afford him adequate process before removing him from the list of hearing officers.  The

complaint sought declaratory as well as injunctive relief and damages.  Thereafter the parties

filed cross-motions for summary judgment.  On March 20, 1998, the trial court granted

partial summary judgment in favor of Dr. Schultz.  The court found that the Superintendent's

March 1, 1995, letter to Dr. Schultz created an understanding or implied contract over which

Dr. Schultz had a property interest protected by the Due Process Clause of the Fourteenth

Amendment.  The court remanded the case to the Superintendent for a hearing in which the

Superintendent would have to show cause for Dr. Schultz's removal from the list.  The trial

court finalized its ruling on May 14, 1998.  This appeal followed. 

Discussion and Decision 

	In reviewing a trial court's ruling on a motion for summary judgment we apply the

same standard as the trial court.  Summary judgment is appropriate only if there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law.  Ace Rent-A-Car, Inc. v. Indianapolis Airport Authority, 612 N.E.2d 1104, 1106 (Ind. Ct. App. 1993), trans. denied.  Although facts may not be in dispute, summary judgment is inappropriate if conflicting inferences arise from undisputed facts.  Kutche Chevrolet v. Anderson Banking Co., 597 N.E.2d 1307, 1308 (Ind. Ct. App. 1992).  On appeal, the appellant bears the burden of proving that the trial court erred in determining that there are

no genuine issues of material fact and the moving party was entitled to judgment as a matter

of law.   Etienne v. Caputi, 679 N.E.2d 922, 924 (Ind. Ct. App. 1997).

	The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property.  Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569 92 S. Ct. 2701, 2705, 33 L. Ed. 2d 548 (1972).  When protected interests are implicated, the right to some kind of prior hearing is

paramount.  Roth, 408 U.S. at 569-70, 92 S. Ct. at 2705.  A protected property interest generally arises from a statute, ordinance, or contract.  Speckman v. City of Indianapolis, 540 N.E.2d 1189, 1193 (Ind. 1989).  Although a  person does not have a federal due process right

to a hearing prior to discharge merely because he is a public employee,  iId. nonetheless, a written contract with an explicit tenure provision is evidence of a formal understanding that

supports a party's claim of entitlement to continued public employment unless sufficient

cause is shown.  Perry v. Sindermann, 408 U.S. 593, 602, 92 S.Ct.S. Ct. 2694, 2700, 33 L. Ed. 2d 570 (1972).  An entitlement may also be shown by an implied agreement gleaned from the

promisor's words and conduct in light of the surrounding circumstances, and the meaning of

the promisor's words and acts aias found by relating them to the usage of the past.  Id. 8

	In the case before us Dr. Schultz is not claiming a right to continued employment under a contract for a definite term.  Indeed, 511 I.A.C. 7-15-5(e) forbids a hearing officer

from being an employee of the Department of Education.  Instead, Dr. Schultz's claim of a

right to due process flows from what the trial court found to be an implied contract with the

Superintendent that entitled Dr. Schultzhim to placement on the list of available hearing officers

for a period of two years.  The Superintendent counters that no such contract exists.  In any

event we need not determine whether the trial court's finding on this point is correct.  We find

that even if a contract existed between the Superintendent and Dr. Schultz, Dr. Schultz's

interest in remaining on the list of available hearing officers for two years does not rise to the

level of a property interest protected by the Fourteenth Amendment's Due Process Clause. 

	A breach of contract by a governmental employer standing alone does not give rise

to a constitutional claim.  Sudeikis v. Chicago Transit Authority, 774 F.2d 766, 770 (7th Cir. 1985).  There is a distinction between the breach of an ordinary contract right and the

deprivation of a protectiable property interest within the meaning of the Due Process Clause. 

Walentais v. Lipper, 862 F.2d 414, 418 (2nd Cir. 1988), cert. denied, (citing Brown v. Brienen, 722 F.2d 360, 363-65 (7th Cir. 1983)).  While a property interest in continued employment may arise where there is an express or implied agreement with a governmental

entity, Perry, 408 U.S. at 599, 92 S.Ct.S. Ct. at 2699, federal constitutional law determines whether an interest in property rises to the level of entitlement protected by the Due Process Clause.  Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 9, 98 S.Ct.S. Ct. 1554, 1560, 56 L. Ed. 2d 30 (1978).  To determine whether due process requirements apply, courts  must

look not to the weight but to the nature of the interest at stake.  Roth, 92 S.Ct. at 2705-06, 408 U.S. at 571, 92 S.Ct.S. Ct. at 2705-06 (1972).  A court must  look to see if the interest is within the Fourteenth

Amendment's protection of liberty and property.  Id. , 408 U.S. at 571, 92 S.Ct.S. Ct. at 2706, 408 U.S. at 571.  

	As tThe Superintendent points out in her brief, placement on the list was no guarantee

that Dr. Schultz would receive hearings.9   Any agreement between the parties must be considered in conjunction with applicable statutes that govern the relationship.  Lutz v. New Albany City Plan Comm'ission, 230 Ind. 74, 101 N.E.2d 187, 191 (1951). 

  The governing provisions of Indiana law do not guarantee or even contemplate appointment of hearing

officers by the Superintendent beyond each individual case.10  Further, neither the letter before us nor the course of dealing between the parties guaranteed that the Superintendent

would  select Dr. Schultz to preside over any cases.  In like fashion, neither the letter nor the

parties' course of dealing placed any requirement upon Dr. Schultz to accept future case

assignments.  Rather,  the substance of the agreement between the parties was that the

Superintendent agreed to place Dr. Schultz on a list for service as a Special Education Hearing Officer, and Dr. Schultz agreed to serve if and when called.  It is true that at the time

Dr. Schultz was removed, the Superintendent used a rotation system for selecting hearing

officers  from the list.  However,  whether he was ever called into service was left strictly to

the discretion of the Superintendent.  See 511 I.A.C. 7-15-5(d).  Within this discretion necessarily includes the option to do away with the rotation system, to place more persons

on the available list thereby greatly decreasing the number of hearings available to Dr.

Schultz, or simply to choose not to assign cases to Dr. Schultz.  Cf. Pritchett v. Alford, 973 F.2d 307, 316-18 (4th Cir. 1992) (Wrecker service had property interest in remaining on list

of towing companies utilized by police where regulations required police to use a rotation

system when selecting a company and only those towing companies called by police were

entitled to respond to an accident.).  	When an official action is truly discretionary under local

law, "one's interest in a favorable decision does not rise to the level of a property right

entitled to procedural due process protection."  Walentai////s, 862 F.2d at 419 (quoting RR Village Ass'n, Inc. v. Denver Sewer Corp., 826 F.2d 1197, 1202 (2d Cir.1987) (citations omitted)).  Furthermore, Dr. Schultz received no compensation for being on the list and was

paid by the public agency involved in the hearing only after he was assigned and presided

over a case. 

	Dr. Schultz relies on cases finding a protected right to continued employment to

support his claim.  However, Dr. Schultz's asserted interest is not in continued employment or even the assignment of cases.  Instead it is the removal from a list of persons to be

considered for hearing assignment.  As such, his case is readily distinguishable from cases where a protected property interest was found in continued public employment guaranteed

by contract or agreement.11   In this context, the United States Supreme Court has carefully limited its decisions in which  due process rights are implicated to situations that involve

employment contracts with tenure provisions, or where a clearly implied promise of

continued employment has been made.  Walentais, 862 F.2d at 418; see Perry, 408 U.S. at 600-01, 92 S.Ct.S. Ct. at 2699-700.  An interest in continuing employment guaranteed by contract

or understanding is far more significant and based on a much greater degree of certainty than

Dr. Schultz's mere expectation that he would be assigned cases without guarantee.  "To have

a property interest in a benefit [such as a job] a person clearly must have more than an

abstract need or desire for it.  He must have more than a unilateral expectation of it.  He

must, instead, have a legitimate claim of entitlement to it."  Speckman, 540 N.E.2d at  11932 (quoting Roth, 408 U.S. at 577, 92 S.Ct.S. Ct. at 2709).  Mere placement on a list of available hearing officers is far too attenuated from receipt of the actual benefit, case assignment, to

constitute a property interest protected by the Due Process Clause. 12 

Conclusion

	Dr. Schultz had no protectiaible property interest in pacementplacement on the list of available

hearing officers.  As such he was not entitled to a due process hearing before being removed

from the list.  The trial court thus erred in granting summary judgment in Dr. Schultz's favor.

On this issue the judgment of the trial court is reversed.

	Judgment reversed.FOR PUBLICATION

ATTORNEYS FOR APPELLANT:	ATTORNEY FOR APPELLEE:

JEFFREY A. MODISETT	KENNETH J. FALK

Attorney General of Indiana	Indiana Civil Liberties Union

	Indianapolis, Indiana

JANET BROWN MALLETT

Deputy Attorney General

Indianapolis, Indiana

	IN THE

	COURT OF APPEALS OF INDIANA

SUELLEN REED, individually and in her 	)	

official capacity as Indiana State Superintendent	)

of Public Instruction,	)

			)

	Appellant-Defendant,	)

			)

		vs.	)	No.  49A02-9807-CV-598

			)

GEOFFREY F. SCHULTZ,	)

			)

	Appellee-Plaintiff.	)

	APPEAL FROM THE MARION SUPERIOR COURT

	The Honorable Steven Eichholtz, Special Judge

	Cause No.  49D05-9701-CP-95

	(Handdown Date)

	OPINION - FOR PUBLICATION

RUCKER, Judge

		When Indiana Superintendent of Public Instruction Suellen Reed summarily removed Dr. Geoffrey F. Schultz from his position as a Special Education Hearing Officer, he filed

suit asserting entitlement to a pre-termination due process hearing.  The trial court agreed and

granted partial summary judgment in Dr. Schultz's favor.  In so doing, the trial court

remanded the matter to the Superintendent for a determination of just cause.  The

Superintendent now appeals contending the trial court erred because (1) Dr. Schultz had no

property right protected by the due process clause and thus was not entitled to a pre-

termination hearing, (2) even if Dr. Schultz were so entitled, the Rule 56 materials show that

he was removed for just cause, and (3) the Superintendent is entitled to qualified immunity

from any claim of damages.  Dr. Schultz cross appeals contending (1) the trial court erred in

remanding this matter for a determination of just cause in that the Rule 56 materials show

there was none, and (2) the trial court erred in not making a determination that Dr. Schultz

was at least entitled to nominal damages.  We address a single dispositive issue which we

phrase as:  did the existence of Dr. Schultz's name on a list of available hearing officers rise

to the level of a constitutionally protected property interest such that his name could not be

removed from the list without a hearing.

Background

	Both federal and Indiana law guarantee a free and appropriate education for disabled

children.1  The law aims to provide a disabled child with an educational program in the least restrictive setting possible given the child's disabilities.  Accordingly, a public school is required to (i) determine whether a child is disabled under the applicable laws, (ii) develop

individual educational programs for each disabled child, and (iii) offer support services that

will allow the child to benefit from the education.2  Generally, the cost of the education is the responsibility of the child's local public school.3  If the child's disabilities require expenses beyond those of children of the same age and grade level in the child's school corporation,

then the State Department of Education assumes responsibility for payment.4  When a child's parents or guardians disagree with a school's assessment of a child's disability or decision

regarding the implementation of an educational program, they have the right to an impartial

due process hearing before an independent hearing officer.  A party may appeal an adverse

judgment of the hearing officer to the Board of Special Education Appeals.5  Judicial review is then available.6  

	Federal and state law forbid the independent hearing officer from being an employee

of the public agency involved in the education or care of the child.7  Selection of an independent hearing officer in Indiana is governed by 511 I.A.C. 7-15-5, which provides in

pertinent part:

(c) A request for a due process hearing and the appointment of an independent

hearing officer shall:

(1) be in writing and signed;

(2) be filed simultaneously with the other parties or their agents

and the state superintendent of public instruction; and

(3) specify the reasons for the hearing request.

(d) The state superintendent of public instruction shall appoint the independent

hearing officer.  When a due process hearing request is received, the public

agency and the parent will be sent a written notice of the name of the

independent hearing officer who has been assigned to the matter.

(e) A person who may be appointed as an independent hearing officer shall:

(1) be trained in the due process hearing procedure;

(2) have no personal or professional interest that would conflict

with the person's objectivity in the hearing; and

(3) not be an officer, employee, or agent of the public agency,

the department of education, or any other agency that may be

involved in the education or care of the student.

(f) A person who otherwise qualifies as a hearing officer is not considered an

employee of the agency solely because the person is paid by the agency to

serve as a hearing officer.  The division of special education and the public

agencies shall maintain a current listing of the persons who serve as hearing

officers, including information on the qualifications of those persons.   

Facts and Procedural History

	In 1992, then Superintendent of Public Instruction H. Dean Evans placed Dr. Schultz

on a list of persons from which the Superintendent would select independent hearing officers. 

Evans informed Dr. Schultz that he would remain on the list for a period of one year. 

Following the one-year period, newly elected Superintendent of Public Instruction Suellen

Reed notified Dr. Schultz that he would remain on the list for an additional year.  In March

1995, the Superintendent sent Dr. Schultz a letter informing him that she was re-appointing Dr. Schultz as a hearing officer for an additional two-year period beginning March 1, 1995,

and ending March 1, 1997.

	In 1996, Dr. Schultz presided over a hearing in case No. 881-96.  In that case, the

parents of a student sought reimbursement from the State Department of Education for

educational expenses they had incurred.  Dr. Schultz decided the case in the parents' favor

and ordered the Department to reimburse the parents $121,021.12 based on his finding that

special education laws had been violated.  The Department appealed Dr. Schultz's decision

to the Board of Special Education Appeals.  The Board reversed Dr. Schultz's decision.  At

the conclusion of the hearing, the Board expressed concerns regarding Dr. Schultz's handling

of the case and directed its attorney, Joel Hand, to contact Dr. Schultz.  In a letter dated

August 27, 1996, Hand informed Dr. Schultz that the Board found several of his findings of

fact to be inaccurate in that they were not supported by the evidence and referred to incorrect

dates.  Hand also informed Dr. Schultz that when writing conclusions of law, it was

inappropriate for a hearing officer to make arguments for or against a party or to express his

or her personal feelings about a case.  Hand further informed Dr. Schultz that the Board felt

he may have exceeded the scope of his role as an independent hearing officer by attempting

to define "educationally related services" rather than complying with the definitions provided

in Article 7 of the Indiana Administrative Code.  Hand delivered a copy of the letter to 

Superintendent Reed.  On September 4, 1996, the Superintendent sent Dr. Schultz a letter

informing him that she had received a copy of Hand's August 27, 1996, letter and was directing the Division of Special Education to remove Dr. Schultz from the list of available

hearing officers.

	On December 16, 1996, Dr. Schultz filed a complaint under 42 U.S.C. § 1983 alleging

that his right to due process of law had been violated because the Superintendent did not

afford him adequate process before removing him from the list of hearing officers.  The

complaint sought declaratory as well as injunctive relief and damages.  Thereafter the parties

filed cross-motions for summary judgment.  On March 20, 1998, the trial court granted

partial summary judgment in favor of Dr. Schultz.  The court found that the Superintendent's

March 1, 1995, letter to Dr. Schultz created an understanding or implied contract over which

Dr. Schultz had a property interest protected by the Due Process Clause of the Fourteenth

Amendment.  The court remanded the case to the Superintendent for a hearing in which the

Superintendent would have to show cause for Dr. Schultz's removal from the list.  The trial

court finalized its ruling on May 14, 1998.  This appeal followed.8

Discussion and Decision 

	In reviewing a trial court's ruling on a motion for summary judgment we apply the

same standard as the trial court.  Summary judgment is appropriate only if there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law.  Ace Rent-A-Car, Inc. v. Indianapolis Airport Authority, 612 N.E.2d 1104, 1106 (Ind. Ct. App. 1993), trans. denied.  Although facts may not be in dispute, summary judgment is inappropriate if conflicting inferences arise from undisputed facts.  Kutche Chevrolet v. Anderson Banking Co., 597 N.E.2d 1307, 1308 (Ind. Ct. App. 1992).  On appeal, the appellant bears the burden of proving that the trial court erred in determining that there are

no genuine issues of material fact and the moving party was entitled to judgment as a matter

of law.  Etienne v. Caputi, 679 N.E.2d 922, 924 (Ind. Ct. App. 1997).

	The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property.  Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569 92 S. Ct. 2701, 2705, 33 L. Ed. 2d 548 (1972).  When protected interests are implicated, the right to some kind of prior hearing is

paramount.  Roth, 408 U.S. at 569-70, 92 S. Ct. at 2705.  A protected property interest generally arises from a statute, ordinance, or contract.  Speckman v. City of Indianapolis, 540 N.E.2d 1189, 1193 (Ind. 1989).  Although a person does not have a federal due process right

to a hearing prior to discharge merely because he is a public employee, id.,  nonetheless, a written contract with an explicit tenure provision is evidence of a formal understanding that

supports a party's claim of entitlement to continued public employment unless sufficient

cause is shown.  Perry v. Sindermann, 408 U.S. 593, 602, 92 S. Ct. 2694, 2700, 33 L. Ed. 2d 570 (1972).  An entitlement may also be shown by an implied agreement gleaned from the

promisor's words and conduct in light of the surrounding circumstances, and the meaning of

the promisor's words and acts as found by relating them to the usage of the past.  Id. 9

	In the case before us Dr. Schultz is not claiming a right to continued employment under a contract for a definite term.  Indeed, 511 I.A.C. 7-15-5(e) forbids a hearing officer

from being an employee of the Department of Education.  Instead, Dr. Schultz's claim of a

right to due process flows from what the trial court found to be an implied contract with the

Superintendent that entitled Dr. Schultz to placement on the list of available hearing officers

for a period of two years.  The Superintendent counters that no such contract exists.  In any

event we need not determine whether the trial court's finding on this point is correct.  We find

that even if a contract existed between the Superintendent and Dr. Schultz, Dr. Schultz's

interest in remaining on the list of available hearing officers for two years does not rise to the

level of a property interest protected by the Fourteenth Amendment's Due Process Clause. 

	A breach of contract by a governmental employer standing alone does not give rise

to a constitutional claim.  Sudeikis v. Chicago Transit Authority, 774 F.2d 766, 770 (7th Cir. 1985).  There is a distinction between the breach of an ordinary contract right and the

deprivation of a protectible property interest within the meaning of the Due Process Clause. 

Walentas v. Lipper, 862 F.2d 414, 418 (2nd Cir. 1988), cert. denied, (citing Brown v. Brienen, 722 F.2d 360, 363-65 (7th Cir. 1983)).  While a property interest in continued employment may arise where there is an express or implied agreement with a governmental

entity, Perry, 408 U.S. at 599, 92 S. Ct. at 2699, federal constitutional law determines whether an interest in property rises to the level of entitlement protected by the Due Process

Clause.  Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 9, 98 S. Ct. 1554, 1560, 56 L. Ed. 2d 30 (1978).  To determine whether due process requirements apply, courts must

look not to the weight but to the nature of the interest at stake.  Roth, 408 U.S. at 571, 92 S. Ct. at 2705-06 (1972).  A court must look to see if the interest is within the Fourteenth

Amendment's protection of liberty and property.  Id. 408 U.S. at 571, 92 S. Ct. at 2706.  

	As the Superintendent points out in her brief, placement on the list was no guarantee

that Dr. Schultz would be assigned hearings.10  Any agreement between the parties must be considered in conjunction with applicable statutes that govern the relationship.  Lutz v. New Albany City Plan Comm'n, 230 Ind. 74, 101 N.E.2d 187, 191 (1951).  The governing provisions of Indiana law do not guarantee or even contemplate appointment of hearing

officers by the Superintendent beyond each individual case.11  Further, neither the letter before us nor the course of dealing between the parties guaranteed that the Superintendent

would select Dr. Schultz to preside over any cases.  In like fashion, neither the letter nor the

parties' course of dealing placed any requirement upon Dr. Schultz to accept future case

assignments.  Rather, the substance of the agreement between the parties was that the

Superintendent agreed to place Dr. Schultz on a list for service as a Special Education Hearing Officer, and Dr. Schultz agreed to serve if and when called.  It is true that at the time

Dr. Schultz was removed, the Superintendent used a rotation system for selecting hearing

officers from the list.  However, whether he was ever called into service was left strictly to

the discretion of the Superintendent.  See 511 I.A.C. 7-15-5(d).  Within this discretion necessarily includes the option to do away with the rotation system, to place more persons

on the available list thereby greatly decreasing the number of hearings available to Dr.

Schultz, or simply to choose not to assign cases to Dr. Schultz.  Cf. Pritchett v. Alford, 973 F.2d 307, 316-18 (4th Cir. 1992) (Wrecker service had property interest in remaining on list

of towing companies utilized by police where regulations required police to use a rotation

system when selecting a company and only those towing companies called by police were

entitled to respond to an accident.).  When an official action is truly discretionary under local

law, "one's interest in a favorable decision does not rise to the level of a property right

entitled to procedural due process protection."  Walentas, 862 F.2d at 419 (quoting RR Village Ass'n, Inc. v. Denver Sewer Corp., 826 F.2d 1197, 1202 (2d Cir.1987) (citations omitted)).  Furthermore, Dr. Schultz received no compensation for being on the list and was

paid by the public agency involved in the hearing only after he was assigned and presided

over a case. 

	Dr. Schultz relies on cases finding a protected right to continued employment to

support his claim.  However, Dr. Schultz's asserted interest is not in continued employment or even the assignment of cases.  Instead, the interest claimed is the right to remain on a list

of persons to be considered for hearing assignment.  As such, his case is readily distinguishable from cases where a protected property interest was found in continued public

employment guaranteed by contract or agreement.12  In this context, the United States Supreme Court has carefully limited its decisions in which due process rights are implicated

to situations that involve employment contracts with tenure provisions, or where a clearly

implied promise of continued employment has been made.  Walentas, 862 F.2d at 418; see Perry, 408 U.S. at 600-01, 92 S. Ct. at 2699-700.  An interest in continuing employment guaranteed by contract or understanding is far more significant and based on a much greater

degree of certainty than Dr. Schultz's mere expectation that he would be assigned cases

without guarantee.  "To have a property interest in a benefit [such as a job] a person clearly

must have more than an abstract need or desire for it.  He must have more than a unilateral

expectation of it.  He must, instead, have a legitimate claim of entitlement to it."  Speckman, 540 N.E.2d at 1193 (quoting Roth, 408 U.S. at 577, 92 S. Ct. at 2709).  Mere placement on a list of available hearing officers is far too attenuated from receipt of the actual benefit, case

assignment, to constitute a property interest protected by the Due Process Clause.13 

Conclusion

	Dr. Schultz had no protectible property interest in placement on the list of available

hearing officers.  As such he was not entitled to a due process hearing before being removed

from the list.  The trial court thus erred in granting summary judgment in Dr. Schultz's favor.

On this issue the judgment of the trial court is reversed.

	Judgment reversed.

BROOK, J., and NAJAM, J., concur.