Aguilera v. CITY OF EAST CHICAGO FIRE CIVIL SERV. COM'N

• Decision Date: 30 May 2002
• Docket Number: No. 45A05-0106-CV-270.,45A05-0106-CV-270.
• Citation: 768 N.E.2d 978
• Parties: Louis AGUILERA, Appellant-Petitioner, v. CITY OF EAST CHICAGO FIRE CIVIL SERVICE COMMISSION, Appellee-Respondent.
• Court: Indiana Appellate Court

768 N.E.2d 978

Louis AGUILERA, Appellant-Petitioner, v. CITY OF EAST CHICAGO FIRE CIVIL SERVICE COMMISSION, Appellee-Respondent.

No. 45A05-0106-CV-270.

Court of Appeals of Indiana.

May 30, 2002.

Rick C. Gikas, Gikas & Sams, Merrillville, IN, Attorney for Appellant.

Anthony DeBonis, Jr., Smith & DeBonis, LLC, Highland, IN, Attorney for East Chicago Fire Civil Service Commission.

Michael W. Bosch, Bosch & Banasiak, Hammond, IN, Attorney Appellee/Intervenor.

OPINION

MATHIAS, Judge.

Louis Aguilera ("Aguilera") appeals from the City of East Chicago Fire Civil Service Commission's ("the Commission") order, in which the Commission sustained Aguilera's discharge from the City of East Chicago Fire Department ("ECFD"), raising the following issues for our review:

I. Whether the Commission's 1999 disciplinary action against Aguilera was brought in a timely fashion;

II. Whether the East Chicago Ordinance is constitutional;

III. Whether the Commission acted in an arbitrary and capricious or otherwise illegal manner when it refused to expunge a 1998 drug test from Aguilera's file and whether that refusal violated his Fourth Amendment and Fourteenth Amendment rights; and

IV. Whether the Commission acted in an arbitrary and capricious or otherwise illegal manner in upholding Aguilera's dismissal from the ECFD based in part upon the aforementioned 1998 drug test.

We affirm.

Facts and Procedural History

The facts most favorable to the Commission's ruling reveal that at all relevant times Aguilera was a full-time, paid member of the ECFD, a member of the Firefighters Pension Fund, and subject to the Fire Civil Service Act of 1972 ("the Act"), which provides that no member of the service may be "removed, suspended, demoted or discharged except for cause, and only upon the written accusation of the appointing power, or any citizen or tax payer, a written statement of which accusation in general terms shall be served upon the accused, and a duplicate filed with the Commission." Appellant's App. p. 194.¹ In October of 1998, Aguilera, pursuant to City of East Chicago Ordinance No. 97-0005 ("the Ordinance"), section 9, was randomly tested for drugs.² On October 27, 1998 Aguilera received notice that his random drug test was positive for metabolites of cocaine, and pursuant to section 16 of the Ordinance, Aguilera was suspended.³

On October 30, 1998, and again on November 3, 1998, Aguilera filed a timely notice of appeal (known as Aguilera I) with the Commission, and requested to participate in the Employee Assistance Program ("EAP") pursuant to section 16 of the Ordinance. Aguilera's EAP request was granted, and he began a rehabilitation program under the supervision of a substance abuse professional. Aguilera was allowed to return to work while he completed the program. The Commission scheduled Aguilera's appeal hearing for December 8, 1998, but the Commission failed to adequately notify Aguilera pursuant to section 29 of the Ordinance.⁴ As a result of the Commission's inadequate notification, Aguilera filed a motion to dismiss on December 28, 1998, requesting that the Commission dismiss the proceedings against him, restore all vacation or sick days used and/or any lost pay as a result of the proceedings, and that the drug test results be expunged from his record. On September 8, 1999, the Commission granted nearly all of Aguilera's requests. The Commission ordered all charges of misconduct from the October 1998 drug test dismissed with prejudice and further ordered the City to restore any and all lost wages, vacation time, or sick leave time lost as a result of its action with respect to the October 1998 drug test. Appellant's App. p. 79. Lastly, the Commission ordered that any reference to any suspension, attempt to discharge, or statement of misconduct appearing in Aguilera's employment record arising from the October 1998 drug test be expunged. Id. However, the Commission denied Aguilera's request to expunge or remove the test results themselves from his record. Id.

Meanwhile, on August 26, 1999, and while Aguilera's motion to dismiss in Aguilera I was still pending, Aguilera was summoned for a follow-up drug test pursuant to section 13 of the Ordinance.⁵ On August 28, 1999, Aguilera again tested positive for metabolites of cocaine. On September 8, 1999, the same day the Commission dismissed Aguilera I, after reviewing and verifying the second drug test, Dr. Timothy W. Raykovich ("Dr. Raykovich") the ECFD Medical Review Officer, notified Fire Chief James Dawson ("Chief Dawson") of Aguilera's test results. The next day, September 9, 1999, Chief Dawson notified Aguilera in writing about the positive test results, and advised that he would conduct a hearing on September 10, 1999 regarding the charges. At the September 10, 1999 hearing, Chief Dawson found that Aguilera had violated the Ordinance for a second time and terminated Aguilera's employment.⁶

Aguilera filed another request for appeal (known as Aguilera II) with the Commission, and another request for participation in the EAP. After proper notification to Aguilera, the Commission held an evidentiary appeal hearing in Aguilera II on November 22, 1999. On December 8, 1999, the Commission issued its Findings of Fact and Conclusions of Law. In its Findings and Conclusions, the Commission sustained Aguilera's discharge under the Ordinance, finding that Aguilera had twice obtained a positive result on a substance abuse test, the second after having completed a qualifying EAP or rehabilitation program and returning to work. Appellant's App. pp. 189-90.

Aguilera sought judicial review of the Commission's findings, and after several preliminary motions, including motions for change of judge and a motion for change of venue, Aguilera I and Aguilera II were consolidated in the Lake Superior Court.⁷ After conducting oral arguments on Aguilera's petition for judicial review, the trial court affirmed the Commission's ruling and Aguilera's petition was denied. Aguilera now appeals. Additional facts will be provided as necessary.

Standard of Review

Our review is limited to the trial court's consideration of whether or not the Commission adhered to proper legal procedure, made findings based on substantial evidence, and violated any constitutional or statutory provisions in doing so. City of Marion v. Alvarez, 151 Ind.App. 133, 138, 277 N.E.2d 916, 918-19 (1972). As our supreme court has stated:

"[O]n review of an administrative act or order where the court is said to hear the matter de novo, the burden is on the complainant to establish the invalidity of the administrative action and, in doing so, the trial court may not merely substitute its judgment for that of the administrative body. It may not interfere with the exercise of the discretionary authority of that body, unless it is made to appear that it acted in the exercise of that discretion in an arbitrary, capricious, fraudulent, or otherwise illegal manner."

Id. at 138, 277 N.E.2d at 919 (quoting City of Evansville v. Nelson, 245 Ind. 430, 443, 199 N.E.2d 703, 710 (1964)) (emphasis added). Former Indiana Code section 19-1-37.5-7, which was maintained by the City of East Chicago under the authority of Indiana Code section 36-8-3.5-1(b)⁸ and by city ordinance,⁹ further defines our review process, and provides in relevant part:

The circuit court shall thereupon proceed to hear and determine such appeal in a summary manner: Provided, however, that such hearing be confined to the determination of whether the judgment or order of removal, discharge, demotion or suspension made by the Commission, was or was not made in good faith for cause, and no appeal to such court shall be taken except upon such ground or grounds.

Former Ind.Code § 19-1-37.5-7 (emphasis added).

Discussion and Decision

I. Timeliness

We must first address Aguilera's claim that the Commission's 1999 charges against him, Aguilera II, were not timely filed. Aguilera argues that pursuant to Commission Rule entitled, "Time Limitation on Charges," adopted in 1983, all Aguilera II charges must have been brought within four days of his alleged violation, and because Aguilera was not charged accordingly, his dismissal was arbitrary and capricious. We disagree. In pertinent part, the Time Limitation on Charges Rule reads:

Anyone bringing charges against another individual shall put in writing the charge within four (4) calendar days of the possible violation and shall deliver said charge to his superior officer. The Assistant Chief or Acting Assistant Chief of that turn shall deliver the charge in a sealed envelope to the Administrative Office. In the event the Administrative Office is closed, the Assistant Chief or Acting Assistant Chief shall attach the sealed envelope to other documents pertaining to his turn.

Br. of Appellant at 36; Br. of Appellee City of East Chicago at 39. In its Findings of Fact and Conclusions of Law, the Commission found that,

It is the Commission's conclusion that the 1983 regulation containing the four (4) day rule was intended to apply only to members of the Fire Civil Service who are preferring charges against other members. The use of the words in the regulation referring to a charging individual delivering the charge "to his superior officer" makes clear that the rule was adopted to require fire fighters to make charges against fellow fire fighters in a timely manner. Consequently, the MRO, in reporting a test result to the Department, cannot be said to be bound by this rule.

Additionally, the medical review officer is not a member of the classified Fire Civil Service and cannot be deemed to be within the jurisdiction of the Commission's rule making power. Thus, the time for bringing the charge begins to run when the Fire Chief had actual notice of the positive test result. The evidence is without dispute that the Chief received notice of the test result, at the earliest, on September 8. He notified Aguilera on

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