Boussom v. City of Elkhart

• Decision Date: 21 July 1983
• Docket Number: No. S 79-332.,S 79-332.
• Parties: James A. BOUSSOM, Billy D. Cook, John H. Drexler, Denise R. Harvell, Robert E. Hendershott, Gary L. Keck, Dennis Minegar, Dale L. Pflibsen, Edgar R. Rapp, Jack A. Sanders, Richard W. Stamatovich, Ray Vinson, Edwin R. Yoder, Lawrence G. Young, Richard R. Clark, Donald E. Cripe, and Robert Genth, Plaintiffs, v. The CITY OF ELKHART, Indiana, Eleanor Kesim, Mayor of said City, Dean Yoder, Fire Chief of said City, and William Wargo, Police Chief of said City, Defendants.
• Court: U.S. District Court — Northern District of Indiana

567 F. Supp. 1382

James A. BOUSSOM, Billy D. Cook, John H. Drexler, Denise R. Harvell, Robert E. Hendershott, Gary L. Keck, Dennis Minegar, Dale L. Pflibsen, Edgar R. Rapp, Jack A. Sanders, Richard W. Stamatovich, Ray Vinson, Edwin R. Yoder, Lawrence G. Young, Richard R. Clark, Donald E. Cripe, and Robert Genth, Plaintiffs, v. The CITY OF ELKHART, Indiana, Eleanor Kesim, Mayor of said City, Dean Yoder, Fire Chief of said City, and William Wargo, Police Chief of said City, Defendants.

No. S 79-332.

United States District Court, N.D. Indiana, South Bend Division.

July 21, 1983.

COPYRIGHT MATERIAL OMITTED

David B. Keller, Steven H. Hazelrigg, Paul D. Mathias, Fort Wayne, Ind., for plaintiffs.

David Stutsman, City Attorney's Office, Elkhart, Ind., William J. Nye, Gary D. Boyn, Elkhart, Ind., for defendants.

MEMORANDUM OPINION

SHARP, Chief Judge.

This case was tried before this court solely on the issue of liability. This memorandum opinion briefly states the legal basis of this court's findings of fact and conclusions of law entered herewith. The claims in this action are made under 42 U.S.C. § 1983 and jurisdiction is invoked under 28 U.S.C. § 1331 and 28 U.S.C. § 1343(3) and (4).

I.

The defendants in this case demoted a number of policemen and firemen in disregard of I.C. XX-X-XX-X. The policy sought to be served by the statute was that of preventing "the evil or mischief which may be said to have formerly existed, of allowing a general dismissal of efficient policemen and firemen at each and every change in the administration of the affairs of the city, without regard to the merits or demerits of the persons so removed, should no longer be permitted." Roth v. State, 158 Ind. 242, 63 N.E. 460 (1902). That statute as well as its predecessors have been reviewed and construed by the Supreme Court of Indiana as well as the Court of Appeals of Indiana.

Certain general propositions regarding demotions and discharges of policemen and firemen were clearly established by those cases prior to January 1, 1980, the relevant time in this case. A city administration may not remove policemen to make room for its friends, Shira v. State, 187 Ind. 441, 119 N.E. 883 (1918), nor can a policeman or fireman be removed if the cause for dismissal bears no reasonable relation to a policeman's or fireman's fitness or capacity to hold his position. Mobley v. City of Evansville, 130 Ind.App. 575, 167 N.E.2d 473 (1960). The cases further establish that policemen and firemen cannot be removed under the guise of reducing membership in their departments. Mills v. City of Winchester, 130 Ind.App. 397, 162 N.E.2d 97 (1959).

In 1975 a question was presented to the Court of Appeals as to whether the statute was applicable in the case of demotions. Jenkins v. Hatcher, 163 Ind.App. 95, 322 N.E.2d 117 (1975). The court held that I.C. XX-X-XX-X did not apply in the case of demotions. In 1977 the General Assembly adopted the amendment making it clear that the protection of the statute extended to those who were demoted as well as those who were discharged.

Since the amendment made no other changes in the statute, the amendment must be read as including the judicial construction given the statute and its predecessor the Indiana Charter Act since the Roth decision in 1902. See, Thomas v. Eads, Ind. App., 400 N.E.2d 778, 783 (1980):

It has long been held in Indiana that when a court interprets a statute and the legislature fails to take action to change that interpretation, the legislature is presumed to have acquiesced in the court's interpretation. See King v. Harris, et al., (1965), 140 Ind.App. 9, 212 N.E.2d 387; and Loeb et al v. Mathis, (1871) 37 Ind. 306. When a statute has undergone several amendments, the latest is deemed to embody previous construction by a court unless a contrary intent is manifest.

Between the 1977 Amendment and January 1, 1980, the Court of Appeals at least twice observed in dicta that the statute applied to policemen and firemen who were demoted. Morris v. City of Kokomo, 178 Ind.App. 56, 381 N.E.2d 510 (1978), and State ex rel Warzyniak v. Grenchik, 177 Ind.App. 393, 379 N.E.2d 997 (1978). In Warzyniak, the court specifically held that officers could not be demoted as part of a reorganization, and further stated:

However, the district court in Smulski 435 F.Supp. 770, supra, found that the ordinance in question provided an exclusive list of reasons for demoting a policeman. Only these reasons constituted "sufficient cause" for demotion. Thus, the policeman had a legitimate claim for entitlement to his rank, absent sufficient cause for demotion. 435 F.Supp. at 774. Municipal Ordinance No. 1057 clearly intended to protect policemen in their positions, particularly against political influences. The ordinance authorized demotion only for violation of written rules and regulations, as established by the Board and the Police Chief. No demotions were to be made for political reasons.

The municipal ordinance affirmatively created an expectation, on the part of each policeman, that he would continue in his rank unless he violated one of the written rules and regulations. The City of Whiting could not deny this expectation and then defend its acts of demotion on the theory that no written rules or regulations had been adopted. See Grenchik v. State ex rel Pavlo, 177 Ind.App. 393, 373 N.E.2d 189 (1978).

In December 1979, the State Association of Cities and Towns issued its "Indiana Elected Municipal Officials Handbook." Pages 89-95 of the Handbook were devoted to the handling of police and fire discipline and made it clear that demotions could be made only as provided in the statute.

Throughout the course of events that occurred in 1980, the Mayor sought and received the advice of the then city attorney regarding the legality of the actions taken. In the early stages of the case presently before the court, defendants had outside counsel but no claim is made that outside counsel rendered an opinion that the defendants' actions were lawful. The then city attorney testified that the rationalization for the lawfulness of the defendants' acts may be found in the defendants' brief filed in the Court of Appeals in the summer of 1980. The brief was not prepared by outside counsel but by an associate city attorney. The City's position is stated at page 9 thereof as follows:

City Administrative Officials May Make General Administrative Re-Organizational Changes Involving Demotion of Some Police and Fire Officers, Irrespective of I.C. XX-X-XX-X, Which is a Statute Relating In Relevant Part Only to Political or Disciplinary Demotions.

The argument is based in large part on certain statutes cited in the brief. At the time the brief was written, these statutes were found in Title 18, Burns Indiana Statutes Annotated, Article 1, Chapter 1.5, under the title "Powers of Cities". The brief omits the very first section of that chapter, I.C. 18-1-1.5-1, which bears the description "Powers of Cities — General — Limitations". In pertinent part, that section provides:

... Any such power may be exercised by a city under authority of this chapter only if and to the extent that such power is not by express provision denied by law ...

In other words, the statutes cited in the defendants' Appellate Brief grant powers which may not be exercised if some other statute denies the power. The statutes relied on by defendants in their Appellate Brief in support of the legality of their action include I.C. 18-1-1.5-15 which grants a city general power to maintain police and fire departments, I.C. 18-1-1.5-16 granting residual powers to cities, and I.C. 18-1-1.5-23 which provides for the liberal construction of powers granted, but which does not provide that cities may use the general provisions of Title 18, Chapter 1.5, to override specific provisions found in other sections of the statutes governing municipalities. The defendants also relied on I.C. 18-1-6-2 and 18-1-6-4 for the proposition that the Mayor and department heads may remove any of their subordinates they may wish to remove. The power of removal granted the Mayor by I.C. 18-1-6-2 was found in the original Cities and Towns Act of 1905, being Chapter 129, Section 80, p. 219. That Act, of course, also contained I.C. XX-X-XX-X which in 1905 was designated as Acts 1905, Chapter 129, Section 160, p. 219.

The judicial construction of I.C. XX-X-XX-X since its inception clearly establishes that the Mayor's powers of removal did not extend to the removal of policemen and firemen. Similarly, the power of department heads to remove their subordinates, being the power involved in the defendants' treatment of I.C. 18-1-6-4, traces its origin to the Cities and Towns Act of 1905, Acts 1905, Chapter 129, Section 82, p. 219. Here, again, the cases clearly establish that police chiefs and fire chiefs had no power under I.C. 18-1-6-4 to remove subordinates without complying with the provisions of I.C. XX-X-XX-X. Thus, an examination of the statutes together with the history of I.C. XX-X-XX-X since the statutes were initially enacted, clearly show that policemen and firemen may not be demoted unless the statutory method is followed. See Atkins v. Klute, 169 Ind.App. 206, 346 N.E.2d 759 (1976).

II.

During its 1980 and 1981 sessions, the Indiana General Assembly amended and recodified I.C. XX-X-XX-X. The statute is now identified as I.C. 36-8-3-4. It must be read in conjunction with I.C. XX-X-X-XX which purports to describe certain policemen and firemen as holding upper level policy making positions. This is done by providing that officers in certain pay grades shall be considered as upper level policy makers.

I.C. 36-8-3-4 permits a mayor to demote policemen and firemen from upper level policy making positions at will and without being bound by the requirement of a due process hearing.

The evidence in this case shows that one cannot be described as being or not being an upper level policy maker...