Bankhead v. Walker

• Decision Date: 09 May 2006
• Docket Number: No. 45A03-0506-CV-248.,45A03-0506-CV-248.
• Citation: 846 N.E.2d 1048
• Parties: Calvin BANKHEAD, Appellant, v. Robert D. WALKER, Successor to Fire Chief Richard Gilliam; and the Gary Fire Civil Service Commission, Appellees.
• Court: Indiana Appellate Court

846 N.E.2d 1048

Calvin BANKHEAD, Appellant, v.Robert D. WALKER, Successor to Fire Chief Richard Gilliam; and the Gary Fire Civil Service Commission, Appellees.

No. 45A03-0506-CV-248.

Court of Appeals of Indiana.

May 9, 2006.

COPYRIGHT MATERIAL OMITTED

Frank R. Martinez, III, Highland, for Appellant.

R. Timothy Fletcher, Hodges & Davis, P.C., Shana D. Levinson, Levinson & Levinson, Merrillville, for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Respondent, Calvin Bankhead(Bankhead), appeals the trial court's determination that disciplinary actions taken against him by Appellants-Petitioners, former Gary Fire Chief, Richard Gilliam(Chief Gilliam), and the Gary Fire Civil Service Commission(the Commission), were in good faith.

We affirm.¹

ISSUES

Bankhead raises two issues on appeal, which we restate as follows:

(1) Whether the trial court erred in affirming the Commission's decision to admit into evidence certain documents showing the results of Bankhead's random drug test at the Commission's hearing; and

(2) Whether the trial court erred in affirming the Commission's denial of Bankhead's Motion for Judgment on the Evidence.

FACTS AND PROCEDURAL HISTORY

On November 26, 2001, pursuant to the policies and procedures of his employer, the City of Gary Fire Department(the Gary Fire Department) in Lake County, Indiana, Bankhead was selected at random and tested for controlled substance use.The results indicated that Bankhead, who had been employed by the Gary Fire Department for twenty-five years, tested positive for marijuana metabolites.Consequently, on November 29, 2001, Bankhead was suspended from duty without pay for violating Rule IV-4 of the Rules and Regulations of the Commission and the City of Gary Drug-Free Workplace Policy and Procedures.Thereafter, Chief Gilliam, Gary's Fire Chief at the time, filed a verified complaint with the Commission that alleged Bankhead had tested positive for marijuana use.

On February 13, 2002, the Commission held a hearing on the matter, where Chief Gilliam introduced into evidence a set of documents, labeled Group ExhibitNo. 2, which included the results of Bankhead's drug test, as well as a certification intended to establish the chain of custody for Bankhead's urine sample that was used as the basis of the test.The documents within Group ExhibitNo. 2 were admitted over Bankhead's objection.In addition, at the close of Gilliam's case, Bankhead moved for the Commission to make a judgment on the evidence, which the Commission denied.

On April 23, 2002, the Commission issued an Order that included Findings of Fact and Conclusions of Law.In its Order, the Commission found that Bankhead had violated the Rules and Regulations of the Commission, as well as the Drug-Free Work Place Policy and Procedures of the City of Gary.As a result, the Commission suspended Bankhead for nine months and subjected him to additional random drug tests.The Commission also demoted Bankhead from the rank of Captain to that of Lieutenant, and prohibited him from taking any promotional exams for one year following the issuance of the Order.

Following the Order's issuance, Bankhead gave timely notice of his appeal.On December 9, 2004, a hearing was held before the trial court.At the close of the hearing, Bankhead filed a motion for Findings of Fact and Conclusions of Law under Ind. Trial Rule 52, which was granted.Subsequently, the trial court affirmed the Order of the Commission.In its findings, the trial court stated, in part:

13.[At the Commission's hearing], Bankhead's attorney objected to [Group ExhibitNo. 2] on the grounds of hearsay and because the hospital record custodian's certification which was stapled to the top of the [] accompanying medical records did not fully comply with Ind.Code § 34-43-1-7.[].

14.[The Commission] examined both I.C. § 34-43-1-7 and the certification attached to Bankhead's records.[].It also considered [the Commission's]Rules and Regulations Part IV, Rule IV-13, which enables [the Commission] to use a less stringent standard for the admission of evidence during Commission hearings.

(Appellant's App.p. 15).

Additionally, in its Conclusions and Rulings, the trial court stated:

1.The Certification that accompanied [Gilliam's]Group ExhibitNo. 2 substantially complies with Indiana Evidence Rule 803(6).

2.The Certification that accompanied [Gilliam's]Group ExhibitNo. 2 substantially complies with Indiana Code § []34-43-1-7.

3.Notwithstanding the fact that the certification authenticating the drug tests complied in large part with Indiana Evidence Rule 803(6), [the Commission] does operate under a less stringent standard for the admission of evidence.

4.[The Commission] reasonably found the drug tests received by [Gilliam] were inherently reliable and were properly admitted into evidence.Therefore, because [Gilliam's]Group ExhibitNo. 2 was properly admitted into evidence by [the Commission], Bankhead's motion for Judgment on the Evidence was properly denied.

(Appellant's App.p. 16).

Bankhead now appeals.Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I.Standard of Review

Typically, in cases involving public employment hearings, 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.SeeAguilera v. City of East Chicago Fire Civil Service Com'n,768 N.E.2d 978(Ind.Ct.App.2002), reh'g denied, trans. denied.However, here, because the trial court entered findings of fact and conclusions of law, we will review whether the evidence supports the findings and whether the findings support the judgment.Lake County Trust Co. v. Jones,821 N.E.2d 1, 3(Ind.Ct.App.2004), reh'g denied.In doing so, we will set aside the trial court's findings and conclusions only if they are clearly erroneous, that is, if the record contains no facts or inferences supporting them.Id.A judgment is clearly erroneous when a review of the record leaves us with the firm conviction that a mistake has been made.Id.Upon such review, we neither reweigh the evidence nor assess the credibility of witnesses, but consider only the evidence most favorable to the judgment.Id. at 3-4.

II.Admission of Certification and Drug Test Results

First, Bankhead asserts that the Commission erred in admitting into evidence Group ExhibitNo. 2, which contained a certification of his drug test results and the actual drug test results.Specifically, Bankhead contends that procedural due process required this set of documents to comport with I.C. § 34-43-1-7, which sets out the requirements for certifying hospital medical records in the absence of a personal appearance by a hospital employee.In the present case, no one from the hospital or the laboratory personally appeared at the Commission's hearing to verify the records admitted in Group ExhibitNo. 2; thus, without a proper certification, Bankhead argues that Group ExhibitNo. 2 was inadmissible hearsay.

Therefore, the crux of the issue here is what evidentiary standards the Commission was required to follow in conducting Bankhead's suspension hearing.First, we note that the Commission's Rules and Regulations, in relevant part, state the following regarding the suspension of an employee:

SECTION 7.REMOVAL, DISCHARGE, SUSPENSION OR DEMOTION OF PERSONS IN CLASSIFIED SERVICE; PROCEDURES; APPEAL.No person in the classified civil service who shall have been permanently appointed or inducted into civil service under provisions of this chapter shall be removed, suspended, demoted or discharged except for cause, and only upon the written accusation of the appointing power . . . a written statement of which accusation, in general terms, shall be served upon the accused, and a duplicate filed with the [C]ommission . . . Any person so removed, suspended, demoted or discharged may, within ten (10) days from the time of his removal, suspension, demotion or discharge, file with the [C]ommission a written demand for an investigation, whereupon the [C]ommission shall conduct such investigation.The investigation shall be confined to the determination of the question of whether such removal, suspension, demotion or discharge was or was not made for political or religious reasons, and was or was not made in good faith for [cause].

(Appellant's App.p. 95).

We also note, as referenced by the trial court in its findings in this case, that Rule IV-13 of the Commission's Rules and Regulations provides:

IV-13 CONDUCT OF HEARING

The hearing shall be conducted in an informal manner and without recourse to the technical common law rules of evidence required in judicial courts.The Commission shall as a matter of policy provide for exclusion of irrelevant, immaterial, or unduly repetitious evidence.Every person who is a party to such a proceeding shall have the right to submit relevant evidence in open hearing and shall have the right of cross examination.

(Appellee's App.p. 1).Despite this provision, Bankhead argues that he has a statutorily created property interest in his continued employment with the Gary Fire Department, and thus the Commission's less stringent standard for admitting evidence at its hearings is violative of his due process rights.

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.Austin v. Vanderburgh County Sheriff Merit Com'n,761 N.E.2d 875, 879(Ind. Ct.App.2002).The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property.Id.The United States Supreme Court has defined constitutionally protected "property" in this context as "a legitimate claim of entitlement."...