The judges heard oral arguments in the case Tuesday and could rule in the coming weeks.
“He got sandbagged,” Judge Terry Crone said of the process used to investigate Wartell’s departure.
The issue is whether attorney John C. Trimble was acting as Purdue’s attorney, an independent investigator or both when he issued a report and recommendations to three members of the university’s board of trustees.
Wartell sought access to that report but was denied by Purdue’s claim of attorney-client privilege, which led to the lawsuit. He won an initial trial court ruling.
“How would you feel if you found out we were on Wartell’s payroll after the fact?” Crone asked Dina Cox, the attorney representing Purdue in the argument.
She acknowledged the concern that something “awry” or “icky” occurred in the case but said Wartell’s remedy is pursuing an ongoing federal lawsuit – not damaging attorney-client privilege rules in a public records request.
Wartell was forced out at IPFW in 2011 because Purdue requires university executives to retire at age 65. Requests from IPFW that he be allowed to stay were denied.
Although IPFW offers programs from both Indiana and Purdue universities, its rules and funding are dictated by Purdue through a management agreement that expired in June but was extended a year.
Wartell filed a complaint against Purdue, claiming discrimination and harassment. Purdue hired Trimble as an independent investigator. The investigation was completed and the board found that no discrimination had taken place.
But nothing was ever released, to the public or to Wartell, who filed requests with Purdue officials and the state’s public access counselor to see the report.
He alleges that Trimble can’t be an independent third-party investigator and an attorney for Purdue at the same time – a view the judges referred to repeatedly.
Mark Ulmschneider, attorney for Wartell, said Purdue waived its privilege when agreeing that Trimble would act as an independent investigator. He said a baseball manager can’t also call balls and strikes because of an inherent conflict.
But the judges seemed uncomfortable with the idea that making the document available to Wartell would mean it was public. An agreement between Wartell and Purdue was silent on whether the report would be open to Wartell.
The judges also questioned whether Trimble had a professional responsibility to tell Wartell he was representing the university.
Cox, Purdue’s attorney, said even if that were true, it wouldn’t negate Purdue’s intent to hire an attorney and maintain privileged information.