Brinson v. Sheriff's Merit Bd. of Jefferson County
| Decision Date | 27 September 1979 |
| Docket Number | No. 1-579A125,1-579A125 |
| Citation | 395 N.E.2d 267,182 Ind.App. 246 |
| Parties | Robert N. BRINSON, Plaintiff-Appellant, v. SHERIFF'S MERIT BOARD OF JEFFERSON COUNTY, Indiana, Defendant-Appellee. |
| Court | Indiana Appellate Court |
Gary K. Kemper, Cooper, Cox, Jacobs & Kemper, Madison, for plaintiff-appellant.
Ted R. Todd, Todd, Hocker, Walro & Collins, Madison, for defendant-appellee.
Plaintiff-appellant, Robert N. Brinson, appeals the judgment of the Jefferson Circuit Court affirming the Sheriff's Merit Board's decision that, by failing to comply with Section K, Paragraph 4, of the rules and regulations of the Jefferson County Police Merit Board, he effectively resigned from the department.
Robert N. Brinson, a deputy sheriff, was initially employed by the Jefferson County Police Department in 1971. Brinson took a leave of absence in the spring of 1974, during the course of an unsuccessful attempt to secure the Democratic nomination for Sheriff of that county. He returned to duty on or near May 14, 1974.
Section K, Paragraph 4, of the merit rules and regulations provides:
In accordance and with the intention of complying with this rule, Brinson submitted to a physical examination and thereby obtained a Physical Examination Report which indicated he was "employable". This report never officially came into the Sheriff's possession.
On June 15, 1974, Brinson was handed a document by Captain Russell Davis which contained the following:
Due to your failure to comply with the Jefferson County Police Merit Board rules and regulations, Section K, Paragraph 4, which states:
Within 30 days after reporting back for duty, such candidate shall furnish to the Sheriff evidence of mental and physical competence and other requirements, as required for new members of the department, at his own expense and the Sheriff may not waive any such requirements except those that existed while such candidate was a member of the department before such leave of absence. Failure to furnish such evidence within 30 days after reporting back for duty shall constitute the resignation of such candidate automatically at 12:01 a. m. on the first day following such 30 days (sic) period.
Your employment with the Jefferson County Police Dept. is terminated.
/s/ Harold D. Raisor
SHERIFF
/s/ Robert Gaffney
MERIT BOARD PRESIDENT
/s/ Richard Cox
MERIT BOARD MEMBER
/s/ Warren Taflinger
MERIT BOARD MEMBER
/s/ Robert E. McCauley
MERIT BOARD MEMBER"
(Our insertion)
Brinson moved to have the Merit Board set aside the notice of termination and requested a hearing. Both were denied. He then filed an action to mandate a hearing; five months later, hearing was held.
Upon the basis of evidence taken at the hearing, the Merit Board found that Brinson had failed to submit his report of physical and mental examination to the Sheriff, and had thereby resigned from the department. The trial court reviewed and affirmed the decision.
Brinson appealed to this court.
This appeal raised four issues:
1. Was the trial court correct in finding that the administrative decision was based upon substantial evidence?
2. Was Brinson terminated in violation of:
insofar as they provide for a hearing prior to discharge?
3. Was Brinson terminated in violation of the same provisions insofar as they require written notice by certified mail, setting forth with specificity the charges against the officer and providing a summary of the evidence, etc.?
4. Is Section K, Paragraph 4, unconstitutionally vague?
Judicial review of an administrative order or decision is limited to a consideration of whether the agency possessed jurisdiction over the matter decided, and whether the order was made in conformity with proper legal procedure, was based on substantial evidence, and does not violate any constitutional statutory, or legal principle. State ex rel. Public Service Commission v. Boone Circuit Court, (1957) 236 Ind. 202, 138 N.E.2d 4; Warren v. Indiana Telephone Co., (1940) 217 Ind. 93, 26 N.E.2d 399; City of Indianapolis v. Nickel, (1975) 165 Ind.App. 250, 331 N.E.2d 760. The Jefferson Circuit Court found that there was substantial evidence to support the administrative decision, that Brinson received due notice and a fair public hearing, and that the rule is constitutional and did not deprive the plaintiff of due process in its wording or application in this case. We will consider the issues in turn.
In Department of Financial Institutions v. Colonial Bank & Trust Company, (1978) Ind.App., 375 N.E.2d 285, 289, Cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979), we stated:
The Merit Board decided, on the basis of evidence taken at the hearing, that Brinson had failed to provide the Sheriff with a physical report and that this constituted resignation from the force. There was considerable disagreement and conflicting testimony regarding the issue of whether the report was offered by Brinson, requested by the Sheriff, or neglected by both. However, the trial court, upon examination of the record of proceedings, found as follows:
5. At such hearing evidence was heard from which the defendant could find as follows:
a. The plaintiff, Robert N. Brinson, was employed in the Jefferson County Police Department prior to the spring of 1974.
b. In the spring of 1974 the plaintiff, Robert N. Brinson, took a leave of absence to run as candidate for Sheriff of Jefferson County, Indiana, in the Primary Election of that spring, and had returned to duty in the middle of May of that year after having been unsuccessful in said candidacy.
c. The plaintiff, Robert N. Brinson, failed to attempt to comply with the above-stated Section K, Paragraph 4 of Jefferson County Police Department Merit Board Rules and Regulations in that he failed to provide Harold D. Raisor, the then Sheriff of Jefferson County Indiana, with any evidence of his physical or mental competence.
d. The plaintiff, Robert N. Brinson, was fully familiar with said rule which was specifically designed to apply to the reinstatement of a person who takes a leave of absence to run for political office."
Upon reviewing the trial record (and noting the admissions contained in the Brief of Appellant) we find sufficient evidence to support the trial court's judgment.
Brinson contends that he was denied the due process explicitly provided for in IC 18-1-11-3, IC 17-3-14-7, and the department's rules and regulations.
Brinson's reliance upon IC 18-1-11-3 is misplaced; the statute applies to cities, not counties. Yunker v. Porter County Sheriff's Merit Board, (1978) Ind.App., 382 N.E.2d 977; Pope v. Marion County Sheriff's Merit Board, (1973) 157 Ind.App. 636, 301 N.E.2d 386.
IC 17-3-14-7 provides: 1
"The sheriff may discharge, demote, or temporarily suspend any county policeman, for cause, after preferring charges in writing and after a fair public hearing before the board, reviewable in the circuit court, a notice of which charges and hearing shall be delivered by certified mail to the county policeman to be discharged, demoted or temporarily suspended. Such county policeman may be represented by counsel. The sheriff may temporarily suspend without a hearing before the board, any county policeman, after preferring charges of misconduct in writing delivered to such county policeman, for a period not to exceed fifteen (15) days.
No county policeman shall be discharged, demoted, or temporarily suspended because of political affiliation, nor shall any county policeman be discharged, demoted, or temporarily suspended after his probationary period, except as provided in this act (17-3-14-1 17-3-14-19).
For the purpose of hearings provided in this act, the board shall have subpoena powers enforcible (sic) by the circuit court. Probationers may be discharged by the sheriff without right to hearing. . . . "
IC 17-3-14-6, which authorizes the Sheriff to establish a classification of ranks and reasonable standards therefor, also provides:
"
Section 3.c. of the Jefferson County Police...
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