City of Fort Wayne v. Bentley

• Decision Date: 25 June 1979
• Docket Number: No. 3-1276A300,3-1276A300
• Citation: 181 Ind.App. 114,390 N.E.2d 1096
• Parties: The CITY OF FORT WAYNE, and Indiana Municipal Corporation, Defendant-Appellant, v. Hubert BENTLEY, Kenneth Brown, Roland Brown, Merald Buckmaster, Donald Cochran, Kenneth Didier, Edgar Fenton, John Fitch, Julian Franke, David Fyock, James Glaser, Michael Hamlin, Thomas Heckman, Darvin Kritzman, Max Lane, Robert McCaffery, Anthony Myers, Robert O'Steen, Richard Pattee, Michael Perriguey, Richard Ridley, Robert Schieferstein, Robert Vorndran, and William White, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 1096

390 N.E.2d 1096

181 Ind.App. 114

The CITY OF FORT WAYNE, and Indiana Municipal Corporation Defendant-Appellant, v. Hubert BENTLEY, Kenneth Brown, Roland Brown, Merald Buckmaster, Donald Cochran, Kenneth Didier, Edgar Fenton John Fitch, Julian Franke, David Fyock, James Glaser Michael Hamlin, Thomas Heckman, Darvin Kritzman, Max Lane Robert McCaffery, Anthony Myers, Robert O'Steen, Richard Pattee, Michael Perriguey, Richard Ridley, Robert Schieferstein, Robert Vorndran, and William White, Plaintiffs-Appellees.

No. 3-1276A300.

Court of Appeals of Indiana, Third District.

June 25, 1979.

William N. Salin, Larry J. Burke, Fort Wayne, for defendant-appellant.

John C. Ruckelshaus, Indianapolis, David B. Keller, Fort Wayne, Joseph W. Kimmell, II, Fort Wayne, for plaintiffs-appellees.

HOFFMAN, Judge.

Hubert Bentley and twenty-two other members of the Fort Wayne Fire Department brought this suit against the City of Fort Wayne claiming that they had been subjected to various adverse job actions in violation of Fort Wayne General Ordinance No. G-29-75. Two of the firefighters alleged that they had been transferred from one division to another contrary to the terms of the ordinance; the remainder alleged that they had been wrongfully demoted.

Eight firefighters sought and obtained dismissal of their claims against the City. The remaining plaintiffs, however, filed a motion for summary judgment, which was granted.

The City now appeals, seeking reversal on the following grounds:

(1) that Ordinance G-29-75 was invalid and therefore formed no basis for granting the relief sought;

(2) that summary judgment was improperly granted;

(3) that the judgment itself was insufficient; and

(4) that the relief granted was improper.

At the outset there is one point which must be discussed. A number of times in its brief the City has made arguments based on its characterization of the proceeding below as one in which the actions of an administrative agency, i. e., the Board of Public Safety, were reviewed. The record is clear, however, that no hearing or other proceeding was conducted by the Board to accomplish the job actions complained of. Consequently, the City's reliance on statutes and rules prescribing procedures to be followed upon a review of administrative action is entirely misplaced.

I. Validity of Ordinance

The City argues that the ordinance is an intrusion by the common council into the administrative function of the Board of Safety and that it therefore violates the doctrine of separation of powers as stated in IC 1971, 18-1-1.5-25 18-1-1.5-27 (Burns Code Ed.). According to the City's reasoning, the ordinance, by imposing limits on the Board's power to demote and transfer, runs afoul of IC 1971, 18-1-1.5-26 which prohibits the council from exercising the appointment power. ¹

This argument errs in its fundamental premise, i. e., that the regulation of the exercise of the power to demote and transfer firemen is tantamount to the actual exercise of that power. Were that true, and were it true, as a result, that any regulation of an administrative or executive power would be invalid under IC 1971, 18-1-1.5-25 18-1-1.5-27, Supra, the common council would be rendered powerless to govern a city. This Court will not ascribe to the Legislature the intent to create such an absurd result. See: City of Indianapolis v. Ingram (1978), Ind.App., 377 N.E.2d 877, at 884.

A reasonable reading of the above-cited provisions is that the Legislature intended to prohibit the council from actually appointing persons to serve in the employ of the city except where specifically authorized to do so by statute. That is to say, the council may not take it upon itself, without statutory authority, to select members of the fire force or of any other city department or agency. Nothing in the record before this Court even remotely suggests that the Fort Wayne Common Council sought to engage in this prohibited activity by passing Ordinance G-29-75. The ordinance cannot, therefore, be held invalid as a violation of the statutory separation of powers.

The City's second attack on the validity of the ordinance focuses on an alleged conflict between IC 1971, 18-1-11-1 et seq. (Burns Code Ed.) and the terms of the ordinance. The City relies heavily upon the language of IC 1971, 18-1-11-1 (Burns Code Ed.) which provides that the Board of Safety ". . . shall have the care, management, supervision and exclusive control of all matters and property relating to or connected with" the fire force. However, this power is by no means unbridled. IC 1971, 18-1-11-2 (Burns Code Ed.) provides that the common council, by ordinance, shall have the power to regulate the exercise of the Board's power in a number of important ways. That section reads, in pertinent part, as follows:

"The annual pay of all policemen, firemen and other appointees shall be fixed by ordinance of the common council; and it shall be lawful in such ordinance to grade the members of such forces and to regulate their pay, not only by rank, but by their length of service. In default of any ordinance fixing the compensation of any member of such fire or police force, such commissioners shall have the power to fix the same, subject to change by ordinance. The commissioners, subject to ordinance, may also fix the number of members of such fire and police forces, and the number of appointees for other purposes. They shall, in like manner, divide such city into police precincts and fire districts; and they shall have power, subject to the laws of the state, and the ordinances of the city, to make and promulgate rules and regulations for the appointment of members on such forces, and for their government." IC 1971, 18-1-11-2 (Burns Code Ed.).

This provision makes it clear that the Board of Safety does not have "exclusive" control of the fire force in the sense that the City maintains it does. Consequently, the ordinance does not conflict with IC 1971, 18-1-11-1 et seq., Supra, merely because it imposes certain restraints on the Board's power to manage the fire force.

The City next argues that the ordinance conflicts with IC 1971, 18-1-1.5-2(n) (Burns Code Ed.) ² because it provides for security of employment and prohibits transfers except under stated conditions but fails to establish standards of merit and qualification. Apparently, the City would have this Court construe IC 1971, 18-1-1.5-2 (Burns Code Ed.), which grants extensive powers to cities, to require that a city either exercise a power to the fullest extent permitted under the statute or refrain entirely from exercising it. Such a construction would, however, run contrary to the intent expressed by the Legislature within the Powers of Cities Act itself.

Under the act, a city may exercise the powers granted in any manner the council deems desirable so long as restrictions contained within the act or within other statutory provisions are not violated:

"Any power conferred upon a city by this chapter (18-1-1.5-1 18-1-1.5-30) or by any other law shall be exercised only in accordance with such method or procedure as may be provided by law. If no method or procedure is provided by law for the exercise of any such power, the common council of any city may, by ordinance, provide a method or procedure for the exercise of such power, and may limit the exercise of any power in any manner not in conflict with this chapter or any other law." IC 1971, 18-1-1.5-17 (Burns Code Ed.).

An examination of the act discloses no provision prescribing a method or procedure for exercising the power granted by IC 1971, 18-1-1.5-2(n), Supra. Further, the City has directed this Court to no other statute which serves that function, nor to any statute which otherwise limits the council's authority to develop its own procedure for exercising that power. Consequently, the ordinance must be upheld as a lawful exercise of the power granted by IC 1971, 18-1-1.5-2(n), Supra.

The City's remaining argument concerning the validity of the ordinance is that it provides for judicial review of a decision of the Board demoting a fireman contrary to IC 1971, 18-1-11-3 (Burns Code Ed.). As noted at the beginning of this opinion, the proceeding below was not a review of an administrative act of the Board. The question of whether the ordinance may properly authorize an appeal from a decision of the Board other than as provided in IC 1971, 18-1-11-3, Supra, is therefore not before this Court.

II. Summary Judgment

As a second ground for reversal, the City argues that the court below erred when it granted summary judgment for appellees. It asserts that certain factual issues which were dispositive of the firefighters' claims remained unresolved at the time the court entered judgment against the City.

The oft-stated rule is that summary judgment is appropriate only where it appears from the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits and testimony, if any, show that there is no issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind.Rules of Procedure, Trial Rule 56(C); Layman v. Atwood (1977), Ind.App., 370 N.E.2d 933, at 935. Further, the burden is upon the moving party to establish that no issue of fact exists. Tabani v. Hester (1977), Ind.App., 366 N.E.2d 193, at 194.

In order to determine whether, under the above standard, summary judgment was properly granted in this case it is necessary to divide the appellees into the following classes according to their claims for relief:

(1) firefighters, other than the former chief, who claimed that they were demoted in violation of the ordinance;

(2) the former chief, who claimed he was demoted to a rank lower than that to which he was entitled under the ordinance; and

(3) firefighters who claimed that they were transferred to different divisions in violation of the ordinance.

The following appellees sought...