City of Evansville v. Nelson

• Decision Date: 23 December 1963
• Docket Number: No. 2,No. 19890,19890,2
• Citation: City of Evansville v. Nelson, 194 N.E.2d 817 (Ind. App. 1963)
• Parties: CITY OF EVANSVILLE, Indiana, Appellant, v. Melville NELSON, Appellee
• Court: Indiana Appellate Court

Page 817

194 N.E.2d 817

CITY OF EVANSVILLE, Indiana, Appellant, v. Melville NELSON, Appellee.

No. 19890.

Appellate Court of Indiana, Division No. 2.

Dec. 23, 1963.

Rehearing Denied Jan. 23, 1964.

Opinion Superseded 199 N.E.2d 703.

Jerome L. Salm, Robert S. Matthews, David M. Keck, Evansville, for appellant.

Weyerbacher, Lacey & Rideout, Boonville, Howard C. Sandusky, Evansville, for appellee.

MOTE, Judge.

The matter before us was tried in the court below without a jury, on an amended complaint which, omitting the formal parts, is as follows:

'1. That for more than eleven (11) years prior to May 20, 1961, the plaintiff was a duly appointed, qualified and acting member of the Evansville Police Department of Evansville, Indiana, and on said last date mentioned, he was a patrolman.

'2. That on or about the 9th day of April, 1961, Chief Darwin Covert of the Evansville Police Department suspended the plaintiff herein from said Evansville Police Department.

'3. That thereafter on the 14th day of April, 1961, a meeting of the Civil Service Commission for the Police Department of the City of Evansville, Indiana, was held at which time charges were made against this plaintiff and that time for hearing said charges was set for the 6th day of May, 196----.

'4. That thereafter on the said 6th day of May, 1961, in the City of Evansville, Indiana, a meeting of the Civil Service Commission for the Police Department of the City of Evansville was held at which time as reported by the minutes of said meeting, evidence was heard and the said Civil Service Commission of the Police Department of the defendant City of Evansville charged the plaintiff with the following:

'1. I charge that on or about the 9th day of April, 1961, at about 4:00 p. m., Patrolman Melville Nelson did then and there violate Paragraph numbered 4 of the Departmental Rules and Regulations of the Civil Service Commission for the Police Department in that he did so conduct himself in the discharge of his duties and in his relations with the public and other members of the Department in a manner which did not promote the most efficient operation of the Department and in such a manner as to bring adverse criticism and disrepute to the Police Department and to the City of Evansville in this: that at said time, and while on duty as a policeman and while wearing the uniform of a policeman, he did then and there partake of intoxicating liquors to such an extent as to result in a condition of intoxication so that he was then and there unable to carry out his duties as a police officer.

'2. I charge that on or about the 9th day of April, 1961, at about 4:00 p. m., Patrolman Melville Nelson did then and there violate Paragraph numbered 22 of the Department Rules and Regulations of the Civil Service Commission for the Police Department in that he did so conduct himself in the discharges of his duties and in his relations with the public and other members of the Department in a manner which did not promote the most efficient operation of the Department, and in such a manner as to bring adverse criticism and disrepute to the Police Department and to the City of Evansville in this: that while a member of said Department and on active duty, he did then and there drink and partake of intoxicating liquor so as to render himself unfit for duty and at a time and place when he was not assigned to a specific undercover assignment previously approved by his superior.

'3. I charge that on or about the 9th day of April 1961, at about 4:00 p. m., Patrolman Melville Nelson did then and there violate Paragraph numbered 25 of the Departmental rules and regulations of the Civil Service Commission for the Police Department in that he did so conduct himself while on duty so as to reflect unfavorably and bring disrepute to the Department in this: that he did, while on duty, partake of intoxicating liquors to such an extent as to result in a condition of intoxication so that he was then and there unable to carry out his duties as a police officer.

'4. I charge that on or about the 9th day of April, 1961, at about 4:00 p. m., Patrolman Melville Nelson did then and there violate Paragraph numbered 27 of the Departmental Rules and Regulations of the Civil Service Commission for the Police Department in that at such time and place, and while on duty as a police officer, he failed to obey specific orders and instructions and failed to take proper police action reasonably expected in a particular situation in that when instructed by a superior officer to respond to a police call, he did not do so, despite the fact that he had advised his superior officer he would so respond.

'5. I charge that on or about the 9th day of April, 1961, at about 4:00 p. m., Patrolman Melville Nelson did then and there violate Paragraph numbered 28 of the Departmental Rules and Regulations of the Civil Service Commission for the Police Department in that he did at said time, and while on duty as a policy officer, wilfully disobey the lawful instruction of a superior officer and failed to respond to a police call to which he was instructed to respond.

'5. That as a result of the aforesaid specific charges, and after a hearing on said specific charges, the Civil Service Commission for the Police Department of the City of Evansville did by inference find the plaintiff guilty of all five charges, but did not specifically find the defendant guilty as charged in each of the five charges, the result being a vote for dismissal by two members of said Commission and vote for suspension by the third member, there being no further findings except the majority dissention of a two to one vote for suspension. That two (2) members of said Commission, to-wit: President John Clouse and Secretary Alan Brentano, heard the evidence on said charges and adjourned said meeting until the 20th day of May, 1961, for further medical testimony.

'6. That on or about the said 20th day of May, 1961, the said President John Clouse and Secretary Alan Brentano, heard further evidence as called for in their adjournment order of May 6, 1961.

'7. That thereafter on the said 20th day of May, the said Civil Service Commission consisting of President John Clouse, Secretary Alan Brentano and Lester Pollack, member, who was not present to hear evidence introduced on May 6, voted 2 to 1 in favor of dismissing the plaintiff from the Police Department of the City of Evansville, Indiana, said two votes for dismissal being cast by Alsn Brentano, Secretary and Lester Pollack, member.

'8. That the said actions of the Civl Service Commission for the Police Department of the defendant City of Evansville in dismissing this plaintiff from the Police Department of the City of Evansville was illegal, arbitrary, capricious and fraudulent in this, to-wit:

'(a) That the specifications in the five (5) charges brought against this plaintiff as set out in rhetorical paragraph four (4) above are not framed according to law.

'(b) That the evidence introduced at the hearing on May 6, 1961, and on which the plaintiff herein was dismissed, was not heard by one member of the Commission who voted for his dismissal.

'(c) That the purported dismissal is contrary to law and arbitrary, capricious, fraudulent, illegal and an abuse of discretion.

'WHEREFORE, plaintiff appeals to the Circuit Court of the County of Vanderburgh, State of Indiana, from said order of dismissal of said Civil Service Commission for the Police Department of the defendant City of Evansville and from said findings of said Civil Service Commission for the Police Department of the City of Evansville purporting to dismiss him from the Police Department of said City and prays that a hearing be had in this Court and that this Court order plaintiff reinstated as such policeman with all legal rights as such and the City of Evansville be ordered to compensate him for all back pay and allowances to which he may be entitled from and after the 20th day of May, 1961, and for all other and proper relief in the premises for which he may be entitled.'

Certain statutes may relieve the defendant of the requirement to file an answer.

The transcript of the evidence, or the bill of exceptions containing the evidence, introduced before the Civil Service Commission for the Police Department of the City of Evansville, Indiana, was filed in the court below. The appellee testified in the court below that he, himself, never entered into an agreement to waive any of his rights at the proceedings held before the said Civil Service Commission, and that he never authorized counsel then appearing for him to waive any of his rights during the proceedings. This was all the evidence in the cause.

The cause originally was filed in the Vanderburgh Circuit Court but was thereafter venued to Warrick County where, as above stated, the matter was tried.

The record shows that the charges against appellee were received at a special meeting of said Civil Service Commission, held on the 14th day of April, 1961, and that the charges were ordered spread of record in the minutes of said meeting. The matter was set for hearing before the Commission on the 6th day of May, 1961, and the Chief of Police was directed to serve notice of such hearing on said appellee, including a copy of the charges filed. However, the record indicates that on April 28, 1961, there was a special meeting of the said Commission for the specific purpose of considering the twenty-one (21) day disciplinary action imposed on appellee by the Chief of Police, which was effective on April 9, 1961, and was due to expire on Saturday, April 29th. The record further indicates that the Board, on said latter mentioned date, extended the disciplinary action for seven (7) additional days, making a total of twenty-eight (28) days to and including May 6, 1961, the date of the hearing. The Commission was advised that appellee had been properly notified of the hearing date, the specific...