IU general counsel, VP Simmons terminated without cause

Indiana University’s longtime vice president and general counsel has been terminated without cause, according to documents obtained by Indiana Lawyer. However, it appears Jacqueline “Jackie” Simmons could remain a university employee until her retirement this summer, although on unpaid leave.

The university didn’t cite a reason for the termination of Simmons, who, according to documents, was terminated without cause but also “has elected to retire from the University effective June 30, 2022, and the University has agreed to honor Employee’s election to retire.”

Simmons’ departure follows a high-profile dispute with a faculty member. That dispute involves a law professor’s allegations that the university violated Indiana’s Open Door Law in its doling out of more than $500,000 in additional pay to the school’s outgoing president and improperly sought the professor’s emails via a public records request as he tried to gather information about the selection process used to hire new president Pamela Whitten.

IU did not respond to Indiana Lawyer questions about whether Simmons’ departure was related to the Open Door Law issues. It is unclear if the change in leadership is part of Whitten’s normal transition as a new president.

IL attempted to reach Simmons via phone and email, but calls were not returned and email requests sent to her IU address received the automatic response, “Jackie Simmons is currently unavailable” and to contact Joseph Scodro, who is currently the interim vice president and general counsel for IU, with any questions. Scodro has also not returned requests for comment made by IL.

According to the transition, separation and release of claims agreement signed Dec. 7, 2021, Simmons remained actively employed by the university but not working (except for any transitional duties) up until Dec. 31. Her separation date in the agreement is listed as June 30.

As of Jan. 1, Simmons was put on unpaid administrative leave until the earlier of her retirement or elected retirement date of June 30. On conclusion of the administrative leave, the university will make a public statement saying, “Jackie Simmons will be retiring as Vice President and General Counsel after nine years of dedicated service to Indiana University” once the agreement has been fully executed, according to the documents.

In an email exchange on Dec. 9, IU spokesman Chuck Carney gave IL that statement when asked about Simmons. As of Jan. 19, IL could not find the statement on the university’s website.

IU removed Simmons’ information from its website on Dec. 8 and has had the job opening for her position posted since at least Dec. 18. On the Indiana Roll of Attorneys, Simmons is still listed as working for IU.

Simmons will be paid the gross payment equal to an aggregate of $174,883 (six months’ base pay as of separation date) minus all relevant taxes and other withholdings, in lump sum on or before July 31, according to the agreement. She will also receive payment for 368 hours of paid time off totaling $61,881, and a gross payment equal to an aggregate of $23,676 representing her retirement plan contribution.

On June 22, 2021, former IU President Michael McRobbie — who was officially succeeded by Whitten on Nov. 4 after she was selected for the position in April — sent a letter to Simmons saying, “In recognition of your long and valued service to Indiana University, if your employment as Vice President and General Counsel is involuntarily terminated by the University without cause prior to July 1, 2022, you will be entitled to … employment terms and severance benefits, all of which will be subject to the terms and conditions … ” of a severance agreement.

The remainder of the letter from McRobbie to Simmons outlines the conditions in the agreement signed on Dec. 7.

Simmons’ departure comes as the university is in the middle of an Open Door Law dispute with tenured IU Maurer School of Law professor Steve Sanders, who obtained internal documents showing the university agreed to make payments to McRobbie totaling $582,722 for consulting services after Whitten was hired last year.

Sanders contends that under the Open Door Law, the agreement with McRobbie, signed in May 2021 by then-IU board chair Mike Mirro, should have been publicly reviewed and acted on during the board of trustees’ June meeting because it was set to take effect July 1.

Carney initially said in an email that information about the item dealing with McRobbie’s additional pay was in a packet of materials provided to the board in advance of a meeting on Aug. 13.

“As is standard procedure, personnel decisions involving contracts are discussed in executive session, if they are discussed at all, and … voted in the administrative action section of the [public] meeting,” Carney told IL and the Indianapolis Business Journal.

Following a story published by IL and IBJ on Oct. 8, Sanders filed a complaint with Indiana Public Access Counselor Luke Britt alleging IU violated the Open Door Law in how it handled the McRobbie contract.

On Nov. 3, Simmons, representing IU, responded to Sanders’ complaint.

The university denied any wrongdoing and wrote Sanders’ complaint is time-barred under Indiana Code § 5-13-7.

Simmons also wrote, “Chair Mirro signed the consulting letter pursuant to the authority delegated to him by the trustees.”

In the letter’s conclusion, Simmons painted Sanders in a negative light.

“… Professor Sanders is not the crusader for public transparency that he hails himself to be,” it states. “He claims his actions are being taken in the public interest and that the inordinate amount of time he has devoted to this matter is somehow tied into his scholarly pursuits at the law school. That is far from the truth.

“Professor Sanders is not acting out of public interest but out of his own interest,” the letter continues. “Moreover, he is trying to use the confidential search process information that he inappropriately obtained and published in violation of IU policy, to promote himself and paint himself as some sort of muckraking journalist.”

Sanders filed a response to Simmons’ letter on Nov. 8, and an advisory opinion by Britt is expected soon.

Despite claiming they followed procedures, the board of trustees held a voice vote on approving McRobbie’s contract on Dec. 3. The day before the vote, Carney told IBJ the board had “already approved this matter appropriately. To the extent a question has been raised, the board is simply taking this additional step to affirm its previous decision.”

Meanwhile, IU also changed its policies regarding legal requests last month.

As Sanders continued requesting documents regarding the presidential search and McRobbie’s contract this past fall, the Indianapolis law firm Hoover Hull Turner LLP requested emails associated with his IU address, “specifically any emails about the search (he) may have sent or received with any members of the IU Board of Trustees, or the 17 members of the presidential search committee.”

At the time, Sanders wrote in an online blog post he suspected the university could’ve made the records requests in an attempt to chill his academic freedom.

In an invoice recently acquired by Sanders via a public records request between IU and Hoover Hull Turner, Simmons is listed as meeting with the firm via teleconference multiple times, starting Sept. 15, 2021, in regard to Access to Public Records Act requests. Scodro was the final approver of the amount of $5,682.70 for the bill on Dec. 15, the invoice shows.

IU updated its policy on legal requests on Dec. 13. The policy now reads that “University administrators shall not initiate a public records request under Indiana’s Access to Public Records Act seeking access to electronic information (as defined in this policy) of Indiana University students, faculty or staff.”

The agenda for the Dec. 2 and Dec. 3 board meeting at IU Kokomo did not list either Simmons or Scodro under personnel items. According to the Open Door Law, a public agency like IU’s trustees can hold a closed-door session to discuss a limited number of specific topics, such as personnel issues, litigation and security.

As general counsel, Simmons represented and directed representation of IU in all legal matters. Simmons was legal adviser to the president, the board of trustees and senior university administrators, as well as the primary resource person on legal matters of institutional procedure and governance.

Prior to working for IU, Simmons practiced law with Faegre Baker Daniels from 2006-2012, where she became managing partner of the Indianapolis office after having served as practice group leader of the firm’s international practice area. She worked for Reilly Industries for 11 years prior to that.

– Greg Weaver of the Indianapolis Business Journal contributed to this report.