Barnes v. Clayton

• Citation: 590 N.E.2d 1112
• Decision Date: 28 April 1992
• Docket Number: No. 45A03-9110-CV-314,45A03-9110-CV-314
• Parties: Thomas v. BARNES, et al., Appellants-Defendants, v. Gerald CLAYTON, et al., Appellees-Plaintiffs. CITY OF GARY, Appellant-Third Party Plaintiff, v. David L. STAPLES, Appellee-Third Party Defendant.
• Court: Indiana Appellate Court

Page 1112

590 N.E.2d 1112

Thomas v. BARNES, et al., Appellants-Defendants, v. Gerald CLAYTON, et al., Appellees-Plaintiffs.

CITY OF GARY, Appellant-Third Party Plaintiff, v. David L. STAPLES, Appellee-Third Party Defendant.

No. 45A03-9110-CV-314.

Court of Appeals of Indiana Third District.

April 28, 1992.

Noah L. Holcomb, Jr., Gary, for appellants.

William A. Padula, Munster, for appellees.

STATON, Judge.

Thomas V. Barnes, Mayor of the City of Gary, along with the City, the Board of Public Works and Safety, and other individual officials (hereinafter referred to collectively as "Barnes") appeal a summary judgment in favor of Gerald Clayton, president of the Gary Fraternal Order of Police and member of the Gary Police Department and David Staples (hereinafter referred to collectively as "Clayton"). ¹ Barnes raises four issues for our review which we consolidate into two:

I. Whether the trial court erred in finding that Barnes failed to exhaust his administrative remedies to remove Staples as a Commissioner.

II. Whether the trial court correctly determined on summary judgment that Staples' conviction for obstruction of justice did not evidence bad moral character such as would prevent him from being appointed to the office of police commissioner.

We reverse.

David L. Staples was a commissioner for the Gary Police Civil Service Commission. At some time during his tenure his nephew was arrested for driving while intoxicated, and Staples took items of evidence to be used for the case. He was convicted of obstruction of justice, a Class D felony, on September 20, 1990. As a result of his conviction, Staples resigned his commissioner's position "with prejudice" on October 12, 1990. Pursuant to Indiana Code 35-50-2-7, Staples was sentenced as a Class A misdemeanant on October 19, 1990.

Due to Staples' resignation, his position on the Commission was vacant and an election was held in the police department to obtain a nomination for the vacancy. ² On October 30, 1990, Staples was again elected to the position, but Mayor Barnes refused to appoint him to the position, citing his lack of faith in Staples' moral character. By memo, the Board of Public Works informed the department that another election was to be held, and another election was scheduled.

Clayton brought this action, seeking an injunction restraining Barnes from causing further meetings in the police department for nominations to fill the vacancy and an order causing Barnes to appoint Staples to the Commission. The trial court granted the Commission's motion to intervene, and the Commission filed its complaint seeking declaratory relief as to Staples' status. Barnes filed a third-party complaint seeking an injunction enjoining Staples from participating in Commission business and a declaratory judgment as to whether obstruction of justice is a crime of moral turpitude which disqualified Staples from serving as a commissioner. Staples was named as a third-party defendant. Motions for summary judgment were filed and the trial court entered judgment for Clayton and Staples.

On an appeal from a summary judgment, we must determine whether the record reveals a genuine issue of material fact and whether the trial court correctly applied the law. Shuamber v. Henderson (1991), Ind., 579 N.E.2d 452, 454. Any doubt as to a fact, or an inference to be drawn, is resolved in favor of the nonmoving party. Id. Summary judgment will be affirmed if it is sustainable upon any theory supported by the record. Kolczynski v. Maxton Motors Inc. (1989), Ind.App., 538 N.E.2d 275, 276, transfer denied.

I. Exhaustion of Administrative Remedies

In Conclusion of Law No. 2, the trial court found "[t]hat the Ordinance and State law prescribe a method for removal of members found after hearing not to be qualified." Record, p. 136. Gary Ordinance No. 5881 states in relevant part:

The board may remove any member of the commission at any time for malfeasance, nonfeasance, removal of residence from the city, or incapacity. Removal and subsequent appeals shall be in the same manner and under the same rules of procedures [sic] as members of the police department of such cities [sic] are now or may hereafter be removed.

Id. at Sec. 2(d), Record, p. 13. Indiana Code 36-8-3.5-7(c) provides:

A commissioner serves at the pleasure of the appointing or electing authority and may be removed at any time. In the case of a commissioner elected by the department, the safety board shall call a meeting of the active members of the department under the procedures specified in section 4 of this chapter if a recall petition signed by a majority of the active members is submitted to the board.

Barnes contends that both the ordinance and the statute speak to the removal of an incumbent commissioner, not to a challenge of the qualifications of a candidate for the post. Not surprisingly, Clayton contends that the ordinance and the statute are the only means by which an individual can challenge the qualifications of a commissioner or a candidate for the Commission, and Barnes must exhaust those remedies before seeking judicial review. We agree with Barnes.

Both of the above provisions clearly refer to the removal of an individual who is already serving as a commissioner. The ordinance allows a commissioner to be removed for substandard performance of his duties or incapacity. The ordinance also permits the board to vacate a commissioner's position upon "removal of residence from the City," implying that the Commissioner previously lived in the City. Thus, the ordinance does not speak to the qualifications of a candidate for the office. Similarly, Indiana Code 36-8-3.5-7(c) unambiguously refers to individuals who have already been elected to the office.

It is a general rule that a party is not entitled to judicial relief until any prescribed administrative remedy has been exhausted. Wilson v. Bd. of Ind. Employment Security Div. (1979), 270 Ind. 302, 385 N.E.2d 438, 441, cert. den., 444 U.S. 874, 100 S.Ct. 155, 62 L.Ed.2d 101. However, the rule does not apply when an administrative procedure and remedy does not exist or when the remedy is impossible or fruitless and of no value under the circumstances. Bartholomew County Beverage Co., Inc. v. Barco Beverage Co., Inc. (1988), Ind.App., 524 N.E.2d 353, 355. The rule does not apply here.

Indiana Code 36-8-3.5-1(b) states in part:

Each elected commission member must:

(1) be a person of good moral character; and

(2) except for a member of a fire department having a merit system established under IC 19-1-37.5, not be an active member of a police or fire department or agency.

The statute identifies no administrative procedure by which a candidate's qualifications may be challenged under these standards. We cannot accept Clayton's assertion that one must wait until a candidate is seated as a commissioner before challenging his qualifications pursuant to statute or ordinance. In addition, the standards used to determine whether removal of the commissioner is necessary in the ordinance and section 7 of the act are wholly different from the "good moral character" standard articulated in section 1. We must conclude that there was no available administrative remedy which Barnes could have pursued prior to filing the declaratory judgment counterclaim. ³

II. Conviction for Obstruction of Justice

Barnes challenges the trial court's conclusion that Staples' conviction for obstruction of justice as a Class A misdemeanor did not disqualify him as a candidate for commissioner. The trial court found:

4. That the conviction of David Staples of Obstruction of Justice, a felony reduced by the Court upon sentencing to a Class A misdemeanor, does not, per se, disqualify said David Staples as a person of good moral character and from acting as a commissioner.

Record, p. 136. Clayton counters that since Staples was sentenced as a misdemeanant, rather than a...