City of Anderson v. State ex rel. Page
| Citation | 397 N.E.2d 615 |
| Decision Date | 20 November 1979 |
| Docket Number | No. 2-677A232,2-677A232 |
| Parties | CITY OF ANDERSON, Defendant-Appellant, v. STATE of Indiana on Relation of Robert Lee PAGE, Plaintiff-Appellee. |
| Court | Court of Appeals of Indiana |
James E. Freeman, Deputy City Atty., Anderson, for defendant-appellant.
Henry P. Schrenker, Anderson, Daniel A. Roby, Fort Wayne, for plaintiff-appellee.
The City of Anderson brings this appeal from a judgment in the Madison Superior Court which reversed a dismissal of Robert Page by the Board of Public Safety. We affirm.
FACTS :
Robert Page, who had been a member of the Anderson Police Department since March 15, 1969, was dismissed by the Board of Public Safety on March 6, 1973. This was the result of a disciplinary action brought against him pursuant to Ind.Code 18-1-11-3. 1 The action was instituted by a letter from Chief of Police Jamerson addressed to the Board. On February 9, 1973 a copy of this letter and a notice of hearing were served upon Page. The five charges consisted of his absence without leave, confronting his wife, insubordination, failure to give his change of address, and possible falsification of his pension fund application. He made a timely written request for a hearing.
Meetings of the Board were held on February 15, 1973, February 21, 1973 (a "secret" meeting) and March 6, 1973. On March 6, 1973 Page was notified of the Board's decision to dismiss him from the Anderson Police Department. On March 27, 1973 Page filed this action in the Madison Superior Court.
Pursuant to the Board's duty to file with the Superior Court a "transcript of all papers, entries and other parts of the record relating to such particular case", Ind.Code 18-1-11-3, the following documents were filed as the complete record before the Board:
1. A letter dated February 5, 1973 from Paddy Jamerson, Chief of the Anderson Police Department to Harold Snow, President of the Anderson Board of Public Safety setting forth the present charges against Page.
2. A letter dated February 9, 1973 from Harold Snow to Page informing him of those charges and of the proposed hearing date of February 15, 1973.
3. A letter dated February 10, 1973 from Page to Snow requesting a hearing.
4. A letter dated February 14, 1973 from William Raymore to the Board which refuted the charges on Page's behalf.
5. An unsigned letter dated January 24, 1973 from Fredrick Spencer, Assistant City Attorney to Jerald O. Finney inquiring as to whether Page wanted a hearing before the Police Pension Board.
6. Page's Police Pension Fund application.
7. A letter dated November 17, 1972 from Jamerson to Page, suspending Page for nine days for "avoidance of duty".
8. Unsworn statements made by Page's ex-wife and her boyfriend dated September 4, 1972 concerning an encounter with Page.
9. An "Inter-Office Memo" reporting Page absent without leave on March 11, 1972.
10. A "Complaint Report" dated March 11, 1972 from Lt. Barth concerning Page's absence with leave and his failure to report a change of address.
11. A letter dated March 15, 1972 from Jamerson to Page informing him of his penalty for the unauthorized absence.
12. Two "Inter-Office Memos" dated December 14, and 16, 1972 reporting Page absent without leave.
13. A letter dated December 18, 1972 from Jamerson ordering Page to appear before the Safety Board on December 12, 1972.
14. A psychiatric report on Page prepared by Dr. William A. Abell dated January 11, 1973.
15. An otherwise unidentified note entitled "1972 Activities for Robert Page", listing his arrests and investigations and his attendance records.
16. Page's appointment as a patrolman, dated March 14, 1969.
17. The minutes of the Board's February 15, 1973, hearing which read:
Special meeting Thursday, February 15, 1973, at 5:00 p. m., with the Anderson Police Department.
Harold A. Snow, Chairman
The meeting was called to order by Chairman Snow and guests were welcomed. Chairman stated that the purpose of the meeting was to consider written charges against Officer Bobby Page, as set out in Chief Jamerson's letter to Chairman Snow dated February 5, 1973. Chairman Snow said that notice of the hearing had been served on PAGE at St. John's Hospital and a copy of the charges were served with the notice.
Asst. City Atty. Fred Spencer, Bobby Page, William Raymore, Chief Jamerson, Captain Howard Little, and Inspector Doyle Crosley.
Chairman Snow received a letter written by William Raymore on behalf of Officer Page, referred to Board.
Chief Jamerson presented charges against Officer Page including written reports and a copy of Dr. Abell's report and copies of Page's pension application. Officer Page and Raymore asked questions of Chief Jamerson and others. Officer Page made a statement to the Board that he wanted to continue as a policeman and was dissatisfied with his previous attorney, Mr. Jerry Finney.
Upon motion of Mr. Phillips and second by Mr. Burnett, the Board approved taking the matter under advisement.
A motion for adjournment was offered by Mr. Phillips and a second by Mr. Burnett was approved by the Board. Adjourned at 6:25 p. m.
BOARD OF PUBLIC SAFETY
/s/ Chester Ravage
Chester Ravage, Secretary
18. The minutes of the Board's March 6, 1973 hearing which read:
Special Meeting Tuesday, March 6, 1973, at 5:00 p. m., Room 5, City Building.
Harold Snow, Chairman
Pete Burnett and Robert Phillips, Members
The Board considered the evidence, testimony, and documents presented at its special meeting held February 15, 1973. The Board discussed the testimony of Officer Page and the statements of Mr. Raymore on his behalf. Each document was examined and discussed by the Board.
The Board found that Officer Page had violated department Rules # 2 and # 6 and had been absent without leave; that he had violated Rules # 21 and # 22 on September 3, 1972, when he confronted his former wife; that he had failed to keep his superior officer advised of his current address in violation of Rule # 5, and that Mr. Page was unfit and unable to continue as a police officer based upon the doctor's report and that Page had not disclosed prior injuries and hospitalizations It was moved by Mr. Phillips and a second by Mr. Burnett that Robert Lee Page ve (sic) dismissed as a member of the Anderson Police Department, Motion carried unanimously.
when he made out his pension application.
A motion for adjournment was offered by Mr. Phillips and a second by Mr. Burnett, was approved by the Board. Adjourned at 5:35 p. m.
SECRETARY
BOARD OF PUBLIC SAFETY
HS/CR/mw
19. Page's notification of the Board's decision which reads:
March 6, 1973
Mr. Robert Lee Page
1924 Morton Street
Anderson, Indiana
Dear Mr. Page:
Please be advised that the Board of Public Safety of the City of Anderson, at a special meeting held March 6, 1973, has made the following decision:
Very truly yours
BOARD OF PUBLIC SAFETY
by: /s/ Harold A. Snow
By: Harold A. Snow, Chairman
By:
By: N. P. Burnett, Member
By:
By: J. Robert Phillips, Member
Attest:
copy: Paddy Jamerson, Chief
We make special note of the fact that, with respect to the hearing on February 15, 1973, the record of the Board contains no transcript of evidence, nor do the documents contained in said record which relate to the substance of the charges (documents numbered 6-15) bear any indication they were admitted as exhibits at the hearing. In addition these documents were delivered to the Board members three or four days before the hearing and to Page on the day of the February 15, 1973 hearing.
In his appeal to the trial court, Page alleged he was illegally discharged. On January 12, 1977, the trial court ordered Page reinstated and paid all wages withheld from him from March 6, 1973, until the date of his reinstatement. In support of this order the trial court found that:
(T)he conduct of the hearing, by the Board of Public Safety, was prejudicial, and unlawful, and in violation of the statutory and constitutional rights of the Plaintiff, which require a fair and impartial hearing, which the evidence clearly shows was not given the Plaintiff; and that there was no substantial evidence to support the ruling of said Board, discharging the Plaintiff, and that the ruling of the Board discharging the Plaintiff, therefore, was illegal, arbitrary and capricious; and that the discharge of the Plaintiff was erroneous, and that the same is null and void, and should be set aside.
We agree with the trial court for three reasons. Page was denied a full and fair hearing, not given proper notice and the decision of the Board was reached after a "secret" meeting of the Board at which Page's adversary, Chief Jamerson, consulted with the Board concerning its decision.
Denial of a full and fair hearing.
Our statute, Ind.Code 18-1-11-3, affords an accused police officer the right to a hearing as follows (Police officers) may be removed for any cause other than politics, after written notice is served upon such member in person or by copy left at his last and usual place of residence notifying him or her of the time and place of hearing, and after an opportunity for a hearing is given, if demanded, and the written reasons for such removal shall be entered upon the records...
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