Atkinson v. City of Marion

Decision Date08 October 1980
Docket NumberNo. 2-279A29,2-279A29
Citation411 N.E.2d 622
PartiesGlenn Robert ATKINSON, Appellant (Plaintiff Below), v. CITY OF MARION, Indiana, Appellee (Defendant Below).
CourtIndiana Appellate Court

William A. Hasbrook, Ruckelshaus, Bobbitt & O'Connor, Indianapolis, for appellant.

John Milford, City Atty., Warren Haas, Deputy City Atty., Marion, for appellee.

MILLER, Judge.

Glenn Robert Atkinson appeals a judgment of the Grant County Superior Court affirming his dismissal, for conduct unbecoming an officer, from the Marion Police Department by the Board of Public Works and Safety of that city. He claims the dismissal was "arbitrary, capricious and illegal" because 1) the language of the appropriate statute and rule prohibiting "conduct unbecoming an officer" is unconstitutionally vague; and 2) it was improper for the Marion city attorney to sit on the Board when his deputy represented the police chief. We affirm.

By way of background we observe that Atkinson's dismissal arose from a complaint filed by the Marion Chief of Police with that city's Board of Public Works and Safety, pursuant to which the Board held a hearing as required by IC 1971, 18-1-11-3 (Burns Code Ed.) 1 It further appears from the record that at such hearing the city attorney for Marion sat on the Board and acted as its presiding officer, while his deputy city attorney functioned as advocate for the police department. Atkinson, who failed to object to such procedure, was ultimately found to be guilty of "conduct unbecoming an officer," an offense which is grounds for dismissal pursuant to IC 18-1-11-3 and under the standards set out in Rule 5(k) of the rules and regulations of the Marion Police Department, that rule being generally based on the provisions of IC 18-1-11-3. In particular, the Board found Atkinson "guilty as charged in the complaint of conduct unbecoming an officer, in that he intentionally falsified and submitted a document concerning an internal investigation." 2 The charges before the Board alleged Atkinson both falsified such document (a receipt or sales slip) which he supplied to superior officers during an investigation of reported thefts of bricks from a construction site, and that he had lied to his superior officers in connection with the same investigation. Atkinson, who acknowledged he had so misled his superiors in order to "cover up" the presence of the bricks near his home, stated the bricks had been placed in the back of his open truck without his knowledge on two occasions.

Atkinson sought and obtained judicial review of the Board's decision by filing an appropriate complaint alleging the Board's decision was "arbitrary, capricious and illegal." The trial court, after considering the transcript of the Board hearing, heard additional evidence submitted by Atkinson, and then granted the City of Marion's motion for judgment on the evidence and entered the following judgment:

"Comes now the parties in person and by counsel and the issue of the competency of the Board including the presence of the City Attorney as a Member of the Board and the Assistant City Attorney marshalling the testimony and prosecuting the proceedings is improper, the court finds for the defendant and against the plaintiff that the actions of the Board was (sic) pursuant to statute.

Further the issue of conspiracy, capricious and excessive finding of the Board is submitted. Evidence heard and concluded. Motion by the defendant for finding at conclusion of plaintiff's evidence submitted and granted and court finds for the defendant and against plaintiff that the plaintiff take nothing by way of the complaint herein.

Costs against the plaintiff."

I.

We first consider Atkinson's argument that the standard applied by the Board and upheld by the trial court pursuant to which he was dismissed for "conduct unbecoming an officer" is unlawful because it is unconstitutionally vague. His particular contention is that such language in subsection k of Rule 5, which rule of the Marion Police Department is generally based on IC 18-1-11-3, supra, is unconstitutionally vague in that it fails to specify what factual matters constitute conduct unbecoming an officer, and thus gives no fair warning to potential defendants nor any adequate guidance to administrative tribunals or reviewing courts which must enforce it. In the circumstances of this case, we disagree.

Rule 5 reads as follows:

"Rule 5. The Board of Works and Safety shall have the power to remove, suspend from office, or deprive of pay for any definite period of time, any officer or member of the Police Department that the Commission, in their best judgment, shall determine for the following reason, to-wit:

(a) The violation of any of the laws of the State (Act 1935, Chapter 292, page 1395) or the ordinances of the City, or any rule of the Board of Works and Safety, or incompetency.

(b) Any act of insubordination or disrespect towards a superior officer or the commissioners.

(c) Any act of oppression or tyranny.

(d) Neglect of duty and general incompetency.

(e) Neglect or disobedience of orders.

(f) Any legal or moral offense.

(g) Immoral conduct.

(h) Conduct injurious to the public peace or welfare.

(i) Incapacity or defects, mental or physical.

(j) Neglect to pay just debts for necessaries contracted while in the service.

(k) Any conduct unbecoming an officer." (Emphasis added)

In support of his argument Atkinson relies principally on the persuasive reasoning of Bence v. Breier, (7th Cir. 1974) 501 F.2d 1185, cert. denied, (1975) 419 U.S. 1121, 95 S.Ct. 804, 42 L.Ed.2d 821, in which the Seventh Circuit held a rule of the Milwaukee Police Department similar to that at issue, proscribing "conduct unbecoming a member and detrimental to the service," was unconstitutionally vague for the same reasons alleged by Atkinson. In reasoning that such rule gave no notice to policemen that they were prohibited (if indeed they properly could be) from sending a letter to the city's labor negotiator outlining a proposed bargaining demand and the reasons therefor, the Court in Bence stated as follows:

... "(I)t is necessary to examine whether the rule creates a standard of conduct which is capable of objective interpretation by those policemen who must abide by it, by those Departmental officials who must enforce it, and by any administrative or judicial tribunal which might review any disciplinary proceeding. Bence v. Breier, 357 F.Supp. 231 (E.D.Wis.1973). On its face, the rule proscribes only conduct which is both 'unbecoming' and 'detrimental to the service.' It is obvious, however, that any apparent limitation on the prohibited conduct through the use of these qualifying terms is illusory, for 'unbecoming' and 'detrimental to the service' have no inherent, objective content from which ascertainable standards defining the proscribed conduct could be fashioned. Like beauty, their content exists only in the eye of the beholder. The subjectivity implicit in the language of the rule permits police officials to enforce the rule with unfettered discretion, and it is precisely this potential for arbitrary enforcement which is abhorrent to the Due Process Clause. Further, where, as here, a rule contains no ascertainable standards for enforcement, administrative and judicial review can be only a meaningless gesture. There is simply no benchmark against which the validity of the application of the rule in any particular disciplinary action can be tested. The language of the rule additionally offers no guidance to those conscientious members of the Department who seek to avoid the rule's proscription. Assuming that the Department (A) formulated the rule to apply to specific acts which it might constitutionally regulate, while (B) choosing not to regulate or to regulate in the remaining thirty prohibitions other acts which it might also constitutionally regulate, given the language of the rule, whether any particular act could be classified as (A) or (B) would be purely a matter of guesswork for policemen seeking to abide by the Department's rules. Thus, the rule at issue conforms with the classic definition of vagueness. See Amsterdam, The Void-For-Vagueness Doctrine, 109 U.Pa.L.Rev. 67, 76 (1960)."

Id. at 1190.

We agree that in circumstances such as those in Bence, our courts should require a close scrutiny of the allegedly offending language where it appears a disciplinary statute threatens protected first amendment activity. 3 We also note however, that numerous courts (perhaps a majority) have held statutes employing similar disciplinary standards are not necessarily unconstitutionally vague. 4 E. g., Arnett v. Kennedy, (1974) 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (statute providing for removal of nonprobationary federal employees "only for such cause as will promote the efficiency of the service" was upheld); Fabio v. Civil Service Commission, (1980) --- Pa. ---, 414 A.2d 82 (statute prohibiting "conduct unbecoming an officer" was upheld), citing Parker v. Levy, (1974), 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439; Allen v. Greensboro, (4th Cir. 1971) 452 F.2d 489; Aiello v. Wilmington, (D.Del.1976) 426 F.Supp. 1272; Lubbock v. Estrello, (Tex.Civ.App.1979) 581 S.W.2d 288; Appeal of Tuch, (1978) 159 N.J.Super. 219, 387 A.2d 1199; Tucson v. Livingston, (1974) 22 Ariz.App. 183, 525 P.2d 949, cert. denied, 421 U.S. 951, 95 S.Ct. 1685, 44 L.Ed.2d 105.

While it is thus significant that Bence, unlike the case at bar, involved a situation in which the standard of "unbecoming" and "detrimental" conduct appeared to "abut on sensitive first amendment freedoms," Bence v. Breier, supra at 1190, we acknowledge that much of the essential reasoning expressed in that case has heretofore been adopted by our Supreme Court in an action involving the prohibition of "unprofessional conduct" by optometrists. Cassidy v. Indiana State Board of Registration & Examination, (1963) 244 Ind. 137, 191...

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