City of Frankfort v. Logan

• Decision Date: 10 February 1976
• Docket Number: No. 2--874A208,2--874A208
• Parties: The CITY OF FRANKFORT, Indiana, Defendant-Appellant, v. Welch R. LOGAN, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 510

341 N.E.2d 510

168 Ind.App. 81

The CITY OF FRANKFORT, Indiana, Defendant-Appellant, v. Welch R. LOGAN, Plaintiff-Appellee.

No. 2--874A208.

Court of Appeals of Indiana, Second District.

Feb. 10, 1976.

Robison, Robison & Miller, Frankfort, for appellant

M. Morrill Morrison, Morrison, Morrison & Morrison, Frank S. Pryor, Carol Grafton, Pryor & Grafton, Frankfort, for appellee.

BUCHANAN, Presiding Judge.

CASE SUMMARY

Defendant-Appellant City of Frankfort, Indiana (City), appeals from a trial court judgment reinstating the Plaintiff-Appellee Welch R. Logan (Logan) to the 'same duty status prevailing at the time of his dismissal' with $16,219.82 in back wages, the City claiming Logan's status was only that of a 'special' policeman who could be dismissed without notice or cause.

Reversed.

FACTS

The facts in this case are stipulated by Logan and the City:

At all times relevant herein, the City of Frankfort, Indiana was a fourth class city of the State of Indiana, and there also has been at all times herein a constituted Board of Works and Safety of the City of Frankfort, Indiana.

On December 14, 1950, the Plaintiff, Welch R. Logan, applied for an appointment to the Frankfort Police Department of the City of Frankfort, Indiana to fill in for George Harrison, an officer called to the Armed Services. Welch R. Logan, then over 35 years of age, namely age 42, (date of birth October 8, 1908) was appointed and became a member of the Frankfort Police Department of the City of Frankfort, Indiana on February 1, 1951. (Emphasis supplied.)

The minutes of the Board of Works and Safety of January 30, 1951, read (in part) as follows:

'The following appointments were made by the Mayor with the unanimous approval of the Board:

'* * *

'* * *

'Welch R. Logan, 601 W. South St., was appointed to the Police Dept. temporarily, effective Feb. 1, 1951. (underlined in minutes). Mr. Logan is married, the father of two children, 41 years of age, a former member of the Lexington, Ky. Police Dept. and politically a Republican. Mr. Logan's age prevents him from becoming eligible for the Police Pension Fund regardless of length of service.'

The minutes of the regular session of the Common Council of the City of Frankfort, Indiana June 16, 1952, with a quorum present, reads as follows:

'Police Chief Nickols reported that Patrolman Harrison has returned from service and is returning to duty as of July 1, 1952. He asked the Council for permission to retain Patrolman Logan who has been serving during Harrison's absence, and asked the Council to obtain the necessary funds for Logan's salary from the parking meter funds. On Motion of Durrum, seconded by Allen, the Council voted unanimously to retain Logan for the remainder of the current year. Eggers then moved, seconded by Durrum, that Logan also be retained during the year 1953. This motion also passed unanimously.'

The Korean conflict Armistice was signed at Panmunjun, Korea on July 27, 1953.

Plaintiff Welch R. Logan served continuously as a police officer of the City of Frankfort from February 1, 1951 to and including the 20th day of June 1968, at which time he was relieved of his badge as a police officer of the City of There was issued to Welch R. Logan by the Frankfort Police Department on May 8, 1956 a 'Department of Police Frankfort, Indiana positive identification' of Welch R. Logan, showing rank as patrolman and Badge No. 15, and stating thereon 'this is to certify that the bearer, whose photograph and signature appear on this card is a bonafide member of the Department of Police, Frankfort, Indiana' and signed by Gilbert R. Clidence, Chief of Police.

Frankfort, and other property of the City of Frankfort. The City of Frankfort paid Welch R. Logan as a member of the Frankfort Police Department continuously from February 1, 1951 to June 20, 1968. The City of Frankfort also paid to Welch R. Logan a clothing allowance annually commencing February 1, 1951 until June 1968. During that time the City of Frankfort did not withhold from Logan's wages for the Police Pension Fund, nor did the City of Frankfort withhold from Logan's wages for Social Security nor did it make payments to Social Security on his behalf. Logan's salary was paid from the parking meter fund of the City of Frankfort. One or more other police officers of the Frankfort Police Department were also paid from this same City of Frankfort fund during these same years.

During the time that Welch R. Logan was a member of the Frankfort Police Department, he was also during at least one of those years President of Lodge #69 Fraternal Order of the Police.

From February 1, 1951 to June 20, 1968 the Chief of Police of the Frankfort Police Department issued orders for Welch R. Logan to carry out police work of the Frankfort Police Department for the City of Frankfort, Indiana.

From February 1, 1951 to June 20, 1968 Logan was subject to rules and regulations of the Frankfort Police Department as a policeman.

From February 1, 1951 to June 20, 1968 said Logan made arrests as a member of the Frankfort Police Department, and pursuant to such arrests as made by Welch R. Logan, charges were filed in Court. At the time of said arrests as having been made by Welch R. Logan, he did carry and wear and exhibit a duly authorized Frankfort Police Badge of the City of Frankfort, Indiana, and he did likewise carry a gun and insignia and uniform and other wearing apparel of the Frankfort Police Department of the City of Frankfort, Indiana.

On or about May 14, 1968 plaintiff's attorneys received a letter from the City of Frankfort, a true copy of which is attached to the Amended Appeal and marked Exhibit 'A'. Welch R. Logan responded by a written request, marked Exhibit 'B' and attached to the Amended Appeal.

Welch R. Logan appeared before the Board of Works again on June 5, 1961 and June 19, 1968, and no charges were filed against Logan by the City of Frankfort nor was any evidence presented by the City of Frankfort against Logan for any misconduct whatsoever as an officer. The Board advised Logan that he was not being discharged for cause. The Board advised Logan that his services had to be terminated, taking the position that the City of Frankfort had no authority to retain Logan as a temporary policeman after the Korean Emergency ceased.

Welch R. Logan was notified of his dismissal on June 20, 1968 by a letter a true copy of which is attached to the Amended Appeal as Exhibit 'C'. Logan stood willing, ready and able, and continued to do so, to continue his duties as a police officer of the City of Frankfort and so notified the Chief of the Frankfort Police Department by his letter of July 1, 1968, a true copy of which is attached to the Amended Appeal as Exhibit At the time that Welch R. Logan was discharged as a police officer of the City of Frankfort, Indiana by the Board of Public Works and Safety of the City of Frankfort, Indiana on June 20, 1968, the City of Frankfort asserted that such discharge created a vacancy on the Frankfort Police Department and the said City of Frankfort did hire a replacement for said Welch R. Logan, said replacement police officer not having previously been a member of the Frankfort Police Department, and said replacement having been appointed on July 17, 1968 as a police officer of the Frankfort Police Department.

'D'. In his last year of employment by the City of Frankfort, Welch R. Logan's annual rate of pay was $5640.

Logan appealed his dismissal by the City to the Clinton Circuit Court on July 16, 1968, claiming that the City's dismissal was 'fraudulent, capricious, and illegal' because he was denied due process.

Following oral arguments of counsel upon the Stipulation of Facts and the parties' trial briefs, the trial court took the matter under advisement and on March 13, 1974, entered its judgment reinstating Logan, awarding him back wages of $16,219.82 and finding that Logan functioned as a 'regular' policeman and should be treated as such pursuant to IC 1971, 18--1--11--3 (which provided for dismissal of 'regular' policemen, for cause and with notice . . . due process).

The City appeals.

ISSUE ¹

Was Logan properly dismissed by the City?

The City contends that Logan's original status as a 'special policeman', at age 42, was legally authorized by IC 1971, 18--1--11--5 (Burns Code Ed.), and when the original purpose for Logan's appointment terminated, he was then 'dischargeable at will'. The City also asserts that Logan's status did not ripen into that of a 'regular' member of the Frankfort Police Department because the City did not have the authority to so employ him as his age (42 years) exceeded the maximum statutory age of thirty-five (35) years required for 'regular' policemen (IC 1971, 19--1--15--1, Burns Code Ed.).

Logan justifies the court's judgment on the grounds that by 'all the facts in the stipulated evidence', he was a 'regular' member of the Frankfort Police Department and therefore could be dismissed only for 'cause' in accordance with the due process requirements of IC 1971, 18--1--11--3 (Burns Code Ed.).

DECISION

CONCLUSION--It is our opinion that Logan never attained the status of a 'regular' policeman, and therefore was properly dismissed from the Frankfort Police Department by the City.

The salient fact of this appeal is that Logan was over the age of thirty-five years at the time he was appointed 'temporarily' to the Frankfort Police force. His appointment could not be as a 'regular' member because he was then forty-two years of age. IC 1971, 19--1--15--1 (Burns Code Ed.) unequivocally prohibits appointment of a regular policeman over the age of thirty-five (appointment of 'special' police is covered by another section):

'Age limit of police--Reappointment--Requirement--Definition.--No person shall be appointed as a member of the police force of any city of the first, second, third, fourth or fifth class after he or she has...