Atkins v. Klute, 1375A57

• Decision Date: 18 May 1976
• Docket Number: No. 1375A57,1375A57
• Citation: 346 N.E.2d 759,169 Ind.App. 206
• Parties: Donald E. ATKINS et al., Appellants (Plaintiffs Below) v. Byron E. KLUTE, Mayor of the City of Richmond, Indiana, and as a member of the Board of Public Works and Safety of the City of Richmond, Indiana, et al., Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 759

346 N.E.2d 759

169 Ind.App. 206

Donald E. ATKINS et al., Appellants (Plaintiffs Below) v. Byron E. KLUTE, Mayor of the City of Richmond, Indiana, and as a member of the Board of Public Works and Safety of the City of Richmond, Indiana et al., Appellees (Defendants Below).

No. 1375A57.

Court of Appeals of Indiana, First District.

May 18, 1976.

John C. Ruckelshaus, Rex P. killian, Indianapolis, for appellants.

Robert L. Reinke, Richmond, for appellees.

LYBROOK, Judge.

Plaintiffs-appellants Atkins et al. appeal from a judgment in favor of defendants-appellees Klute et al. on plaintiff's complaint for declaratory judgment and mandate. The following issues are presented for review:

(1) Whether firemen employed by the city of Richmond could lawfully be dismissed from their employment on January 1, 1973, for economic reasons.

(2) Whether there was sufficient evidence to support the judgment.

The record reveals that prior to January 1, 1973, plaintiffs were employed by the Fire Department of the City of Richmond. On that day plaintiffs were discharged from their positions by operation of an appropriation ordinance passed on August 28, 1972, by defendant Common Council of the City of Richmond. The sole reason given by defendants for plaintiffs' termination was economy.

On September 11, 1972, plaintiffs, then being aware of their pending dismissals, filed a complaint for declaratory judgment and mandate seeking inter alia to have the appropriation ordinance of August 28, 1972, declared invalid as it pertained to the discharge of firemen for economic reasons. Plaintiffs maintained at trial, as they do on appeal, that the provisions of the ordinance terminating firemen for economic reasons were invalid in that they contravened the so-called 'Firemen's Civil Service Law' found at IC 1971, 18--1--11--1 et seq. (Burns Code Ed.) and the case law interpreting the same.

During the course of the proceedings in the trial court, partial summary judgment was rendered on December 27, 1972, in favor of defendants declaring that dismissal of firemen for reasons of economy alone was not unlawful, provided that the action was in good faith. Trial was eventually had on other issues, and judgment was rendered in favor of defendants.

I.

Initially, plaintiffs challenge the propriety of the partial summary judgment, maintaining that the law is well settled that the tenure granted to firemen by IC 1971, 18--1--11--3 (Burns Code Ed.) forbids firing without just cause. Moreover, plaintiffs argue that economic reasons are not just cause. The statute cited by plaintiffs provides:

'Every member of the fire and police forces, including police radio operators and police signal and fire alarm operators, appointed by the mayor, the commissioners of public safety or the board of metropolitan police commissioners, shall hold office until they are removed by said board. They may be removed for any cause other than politics, after written notice is served upon such member in person or by copy left at his last and usual place of residence notifying him or her of the time and place of hearing, and after an opportunity for a hearing is given, if demanded, and the written reasons for such removal shall be entered upon the records of such board. On the conviction in any court of a member of the said fire or police force, including police radio operators and police signal and fire alarm operators, of any criminal offense, or upon a finding and decision of the board that any such member has been or is guilty of neglect of duty, or of the violation of rules, or neglect or disobedience of orders, or of incapacity, or absence without leave, or immoral conduct, or conduct injurious to the public peace or welfare or conduct unbecoming an officer, or other breach of discipline, such commissioners shall have power to punish the offending party by reprimand, forfeiture, suspension without pay, dismissal, or by reducing him or her to a lower grade and pay. . . .'

In State ex rel. Felthoff v. Richards (1932), 203 Ind. 637, 180 N.E. 596, our Supreme Court discussed this statute at length:

'The General Assembly has recognized the sound public policy of retaining in the public service policemen and firemen who have become increasingly valuable by reason of their experience and has, by statute, assured these public servants an indefinite tenure of position during good behavior and satisfactory performance of their duties. In order to protect this tenure of position the General Assembly has provided for a hearing on proper notice for a policeman or fireman under charges.

'The hearing required by law is a fair hearing, one conducted in good faith and dominated solely by a desire to determine the fitness of the person under charges. Further, the notice must apprise the accused of the acts of dereliction or personal defects which constitute the 'cause.' The purpose of the notice is not merely to inform of the time and place of the proposed hearing, but also to disclose the particular act or acts of delinquency or the particular defect constituting incompetency. If the relator was dismissed without 'cause' or if he was dismissed without a fair hearing, then his dismissal was illegal; and if his complaint shows on its face that he was dismissed without cause, or without a fair hearing, the trial court erred in sustaining the demurrer to relator's complaint.

'Appellees correctly state the law, as abstract propositions, when they quote from various decisions to the effect that the boards of safety...