Austin v. VANDERBURGH CTY. SHERIFF MERIT COM'N

• Decision Date: 16 January 2002
• Docket Number: No. 82A01-0101-CV-37.,82A01-0101-CV-37.
• Citation: 761 N.E.2d 875
• Parties: Mike AUSTIN, Appellant-Petitioner, v. VANDERBURGH COUNTY SHERIFF MERIT COMMISSION and Vanderburgh County Sheriff, Appellees-Respondents.
• Court: Indiana Appellate Court

761 N.E.2d 875

Mike AUSTIN, Appellant-Petitioner, v. VANDERBURGH COUNTY SHERIFF MERIT COMMISSION and Vanderburgh County Sheriff, Appellees-Respondents.

No. 82A01-0101-CV-37.

Court of Appeals of Indiana.

January 16, 2002.

Charles L. Berger, Berger and Berger, Evansville, IN, Attorney for Appellant.

Jeffrey W. Ahlers, Todd C. Barsumian, Kahn Dees Donovan & Kahn, LLP, Evansville, IN, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge.

Mike Austin appeals a grant of summary judgment in favor of the Vanderburgh County Sheriff Merit Commission and the Vanderburgh County Sheriff (collectively referred to as "Vanderburgh County" unless otherwise noted) in his action against Vanderburgh County for removing him from a Vanderburgh County Sheriff's Department (Sheriff's Department) eligibility list for promotion to the rank of probationary sergeant. Upon appeal, Austin challenges the correctness of that ruling. In the context of that ruling, we address specifically the dispositive question of whether Austin has a protectable property interest in maintaining placement on the promotion-eligibility list in such a way as to trigger constitutional due process protections with respect to removal from the list.

We affirm.

The facts favorable to the nonmoving party are that in the autumn of 1998, promotions for personnel in the Sheriff's Department's were governed by the program referred to as "Standard Operating Procedure" (S.O.P.). The procedures at issue here pertained to promotion to the rank of sergeant. We outline those procedures below.

According to the S.O.P., the Sheriff's Department maintained "full control" of the promotional process. Appellant's Appendix at 414. Moreover, the Sheriff was "vested with the ultimate authority and responsibility for administering the promotional process with the approval of the Sheriff's Merit Commission pursuant to IC § 36-8-10-10."¹Id. The S.O.P. set forth the qualifications for eligibility, which in the case of a sergeant included five years of continuous service with the Sheriff's Department, completion of a specified amount of college credits, and participation in a first-line supervisory school or having made application to attend same prior to submitting indication of intent to take the promotional exam. If a candidate met these requirements, he or she would then take a written examination. If the candidate passed the written examination, he or she would submit to two oral examinations, or interviews. One of the interviews would be conducted by the Sheriff's Merit Commission, the other by the Sheriff and Chief Deputy. If the candidate passed both interviews, his or her name would be placed on a promotion eligibility list. A candidate was eligible for promotion for a period of two years after his or her name was placed on the list.

Austin took the written examination on December 5, 1998. In order to pass the test, an applicant must score at least 70%. Austin scored 71%. After obtaining his results, Austin received a letter from the Sheriff's office congratulating him for passing the written exam and informing him that he had advanced to the next stage of the promotion process, which included the interviews. The interviews were scheduled for December 19, 1998. Lieutenant John Strange of the Sheriff's Department assisted the Merit Commission in the promotional process by reviewing the personnel files of the candidates it was going to interview. Prior to the December 19 interview, Lt. Strange reviewed Austin's personnel file and provided the Board with a summary of the file's contents, including hire date, past assignments, current assignment, disciplinary actions, and commendations.

The list of disciplinary actions against Austin was not insubstantial. For instance, on March 13, 1994, Lieutenant D. Ludwig informed Captain M. Craddock in a letter that he was recommending that Austin be suspended for six days without pay and placed on probation for six months as a result of thirteen disciplinary infractions that had occurred during the preceding twelve months. This recommendation was based upon Lt. Ludwig's conclusion that

it is apparent that Corporal M. Austin has not responded positively to counseling by his supervisors, nor has any of the disciplinary actions taken against him corrected his continued violations of the departmental rules and regulations. Corporal Austin apparently has difficulty accepting responsibility for his behavior and his excuses or reasoning for failing to follow guidelines seem questionable.

Appellant's Appendix at 389. The record also details several other discipline-related suspensions that occurred both before and after those referenced in Lt. Ludwig's letter.

Austin was interviewed by the Merit Commission. Later, pursuant to S.O.P. guidelines, Austin was interviewed by Sheriff-elect Brad Ellsworth and Chief Deputy Steve Woodall. When all of the interviews were completed, the Merit Commission met to discuss the candidates. As a result of that discussion, the Commission sent the following letter to Sheriff Hamner:

The Merit Board, by and through the votes of three Merit Commissioners, hereby directs you to remove applicant Mike Austin from the Sergeant Eligibility List, based on his lengthy and substantial disciplinary record documenting his inability to competently serve in a such [sic] a command level capacity, including but not limited to the fourteen (14) supervisory interventions and/or disciplinary actions in the last five (5) years.

Appellant's Appendix at 425. The letter was signed by all three members who were present during Austin's interview. On January 5, 1999, Chief Deputy Woodall sent a letter to Austin notifying him that he had been removed from the Sergeant's promotional process.

On February 2, 1999, Austin's attorney sent a letter to Tim Klinger, a member of the Merit Commission, advising him as follows:

I have reviewed in detail the promotional requirements under the standard operating procedure for the Vanderburgh County Sheriff's Department. In reviewing those procedures and the statutes through which those regulations have been adopted, I find no legal basis for the action that was taken by the commission [sic] against Mr. Austin. Mike Austin has met each of the requirements to be placed on the promotional list. Where he is on the list is up to the Commission. We are not questioning the actions of the committee at this time regarding his placement since he has not been placed. The purpose of this letter is to advise you that pursuant to the S.O.P. of the Vanderburgh County Sheriff's Department, you have violated his rights under said procedures and you have removed him without any authority. We hope that you will see that this matter is corrected immediately, so that no further [sic] is necessary to be taken against the Vanderburgh County Sheriff's Department.

Appellant's Appendix at 445.

On July 14, 1999, Austin filed a verified complaint against the Sheriff's Department and the Merit Commission alleging that his constitutional due process rights were violated when his name was not placed on the sergeant's promotional list. According to Austin, the failure to place his name on the list violated his due process rights under article I, section 13 of the Indiana Constitution. On June 9, 2000, the appellees filed a motion for summary judgment, contending that Austin's complaint failed to state a claim upon which relief could be granted. On December 28, 2000, the trial court granted the appellees' motion for summary judgment upon its conclusion that Austin did not have a protectable property interest in having his name placed on the eligibility list.

Our standard of reviewing a summary judgment ruling is well settled and the same as that employed by the trial court. We confine our review to those materials that were designated to the trial court. See T.R. 56(H). Summary judgment is appropriate only when the designated materials demonstrate that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. See Ind. Trial Rule 56(C); Butler v. City of Peru, 733 N.E.2d 912 (Ind.2000). When reviewing the designated materials, we are mindful that all facts and reasonable inferences drawn therefrom are construed in favor of the nonmoving party. See Butler v. City of Peru, 733 N.E.2d 912. We carefully review summary judgment rulings to ensure that the parties were not improperly denied their day in court. Id.

In his complaint for damages, Austin identified the theory of liability against Vanderburgh County as follows: Vanderburgh County "illegally and unconstitutionally denied [Austin] a property right and position on the sergeant's list." Appellant's Appendix at 20.

The Fourteenth Amendment of the United States Constitution prohibits any state from depriving a person of life, liberty, or property without due process of law. The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The United States Supreme Court has defined constitutionally protected "property" in this context as "a legitimate claim of entitlement." Id. at 577, 92 S.Ct. 2701. The source of such entitlements is not to be found in the Constitution, however. "Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. at 577, 92 S.Ct. 2701. Thus, a protected property interest generally arises from a statute, ordinance, or contract. Reed v. Schultz, 715 N.E.2d 896, 900 (Ind.Ct.App. 1999), trans. denied.

When protected interests are implicated, the right to some kind of prior hearing is paramount. Board of...