City of Gary v. Gause

• Decision Date: 31 October 1974
• Docket Number: No. 3--1272A97,3--1272A97
• Citation: City of Gary v. Gause, 317 N.E.2d 887, 162 Ind.App. 97 (Ind. App. 1974)
• Parties: CITY OF GARY, Defendant-Appellant, v. Glen R. GAUSE, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 887

317 N.E.2d 887

162 Ind.App. 97

CITY OF GARY, Defendant-Appellant, v.Glen R. GAUSE, Plaintiff-Appellee.

No. 3--1272A97.

Court of Appeals of Indiana, Third District.

Oct. 31, 1974.

Rehearing Denied Dec. 9, 1974.

J. Robert Miertschin, Jr., First City Atty., Charles A. Ruckman, Corp.counsel, Gary, for defendant-appellant.

Frederick T. Work, Hamilton L. Carmouche, Gary, for plaintiff-appellee.

HOFFMAN, Chief Judge.

This is an appeal from a judgment of the Lake Superior Court reversing the decision of the Police Civil Service Commission(Commission) which had previously dismissed appelleeGlen R. Gause following a full hearing on certain charges; and ordering that appellee-Gause be reinstated as a member of the Gary Police Department and paid all wages owing to him.

An examination of the record before us discloses that on January 7, 1971, Charles Boone, Chief of Police of the Gary Police Department of Gary, Indiana, filed formal charges against Officer Glen R. Gause which read, in part, as follows:

'Gentlemen:

'In accordance with the laws of the State of Indiana and the Police Civil Service Commission Rules pertaining to Dismissals, Suspensions and Punishments, I, Charles Boone, Chief of Police of the Police Department of Gary, Indiana, hereby prefer charges against Officer Glen R. Gause of the Gary Police Department.

'These charges are the following:

'1.Violation of the following Disciplinary Rules of the Police Civil Service Commission:

A. DisciplinaryRule No. 2, viz., conduct unbecoming a police officer.

B. DisciplinaryRule No. 3, viz., immoral conduct.

'2.Violation of the following statutory standards of conduct for police officers:

A.Neglect of duty by failing to enforce that portion of GeneralRule No. 2 of the Gary Police Department which reads as follows:

'All officers shall be held responsible for conditions on their beats and it is their duty to see that the laws are enforced.'

B.Immoral conduct.

C.Conduct injurious to the public welfare.

D.Conduct unbecoming an officer.'

A hearing was subsequently conducted on the above stated charges and on March 31, 1971, the Commission entered its order dismissing appellee-Gause from the Gary Police Department and suspending four other officers for seven days.Such order read, in pertinent part, as follows:

'Pursuant to the laws of the State of Indiana, a hearing was held before this body on the charges entered of record in the minutes of the Commission against the following officers of the Gary Police Department: Officer Alonzo Duncan, Jr., Officer Robert Gant, Officer Glen R. Gause, Officer Willie R. Turley and Officer George W. Woods.

'On Friday, December 11, 1970, at approximately 8:30 P.M., said officers entered the restaurant and gambling room operated by one Eddie Martin, at 1629 Adams Street, Gary, Indiana.In the presence of 4 of said officers, Officer Glen R. Gause made an extortion demand upon Eddie Martin.In response to said extortion demand of Glen R. Gause, and in the presence of the 4 other officers, Eddie Martin gave Officer Gause the sum of Forty ($40.00) Dollars.This money was paid Officer Gause as a result of Gause's threat to Eddie Martin that he and the other 4 police officers would tear up Martin's place of business, under the color of their office as policemen, if the money was not paid.Even though this extortion by Officer Gause was made in the presence of the 4 other said police officers, no police report of this incident was made by any of said officers to any superior officer.

'WHEREFORE, the Gary Police Civil Service Commission finds all of said officers guilty as charged of the violation of the Rules and Regulations of the Gary Police Civil Service Commission and Gary Police Department in the following particulars:

1.That they engaged in conduct unbecoming a police officer.

2.That they engaged in immoral conduct.

3.That they neglected their duty by failing in their responsibility to enforce the laws of the State of Indiana, and for the conditions existing on their beats.

4.That they engaged in conduct injurious to the public welfare.'

On April 2, 1971, appellee filed a verified complaint in the Lake Superior Court appealing his discharge.On May 9, 1972, the trial court entered its special findings of fact and conclusions of law and ordered appellee reinstated effective March 31, 1971.In addition, it was ordered that appellee be paid all back wages.On July 7, 1972, the City of Gary timely filed its motion to correct errors and motion for stay of proceedings to enforce a judgment.On October 3, 1972, the trial court denied the City's motion to correct errors but sustained the City's motion for stay of proceedings to enforce a judgment, as to appellee's right to collect his salary and wages pending disposition of this appeal.Thereafter, the instant appeal was perfected.

The first issue to be considered is whether the decision of the Commission was supported by substantial evidence.Appellant's argument that the trial court erred in reversing the decision of the Police Civil Service Commission is made in reference to the following Findings of FactNos. 7 and 8:

'7.

'That there was not substantial evidence before the Police Commission to sustain its findings and action in dismissing the plaintiff from the Police Department.

'8.

'That in view of the lack of substantial evidence to support its finding and order, the decision of the Commission was arbitrary, capricious and contrary to law.',

and Conclusion of LawNo. 4,

'4.That there was a lack of substantial evidence to support the findings of the Gary Police Civil Service Commission that plaintiff was guilty of the charges.'

Appellant asserts that it is incumbent upon this court to review the evidence presented to the Commission and arrive at an independent evaluation as to whether there was substantial evidence to support the administrative decision.

Determination of the present issue hinges initially upon the proper scope of review to be employed by the trial court and the Court of Appeals, IC 1971, 18--1--11--3, Ind.Ann.Stat. § 48--6105(Burns Supp. 1974), provides that an appeal from an order dismissing a policeman shall be heard by the trial court de novo.However, it has been held that this is not literally true.Our Supreme Court in City of Mishawaka v. Stewart (1974), Ind., 310 N.E.2d 65, at 68--69, stated that:

'This has been held to mean, not that the issues at the hearing before the board are heard and determined anew, but rather that new issues are formed and determined.

"* * * a review or appeal to the courts from an administrative order or decision is limited to a consideration of whether or not the order was made in conformity with proper legal procedure, is based upon substantial evidence, and does not violate any constitutional, statutory, or legal principle. * * *'State ex rel. Public Service Commission v. Boone Circuit Court, etc.(1956), 236 Ind. 202, 211, 138 N.E.2d 4, 8.

'Insofar as the findings of fact by an administrative board are concerned, the reviewing court is bound by them, if they are supported by the evidence.It may not substitute its judgment for that of the board.Kinzel v. Rettinger (1972), Ind.App., 277 N.E.2d 913.'

An examination of the evidence before the Commission, for the purpose of determining whether there was substantial evidence to support its finding, reveals that on the evening of December 11, 1970, Eddie Martin received a call from his wife to 'come down' to his restaurant that '(y)ou got some police here.'When he arrived, the police officers charged in these proceedings were in his restaurant and Martin recognized appellee Officer Gause and Officer Turley.Martin testified that Officer Gause said, 'I got to have some money, and my boss, too', after which Martin handed him four ten dollar bills.After threatening to 'tear (Martin) up', Gause returned on December 14, 1970, at which time he demanded and received $100.

Martin's wife, who was present during both incidents, gave substantially the same account of the incidents.Since all testimony was in basic agreement regarding the presence of the officers in Martin's establishment, the factual question narrows to why the officers originally went there.Gause testified that all of the men involved were at his house after duty and decided on their own to conduct a gambling raid.Although there were no orders for these men to conduct such a raid, they thought they were 'doing the community a service.'Testimony also disclosed that no written report was filed by any of the officers subsequent to the raid.Officer Gause denied taking $40 and $100 from Martin on the two days in question.

Thus, this court is confronted with an irreducible conflict between whether Gause and the other officers were present in Martin's restaurant for a 'shakedown' or as part of a legitimate police gambling raid.

Although City of Mishawaka v. Stewart(Ind.App.1973), 291 N.E.2d 900, was reversed by our Supreme Court, ¹ factual similarities between that case and the one at bar necessitate application of the decision of this court regarding findings of fact, which survived reversal and remains good law.

In Stewartthe trial court was faced with a fundamentally similar situation in which a fire department officer was dismissed on the basis of testimony of two brothers whose statements to investigators and to the Board were inconsistent.Therein the trial court, in its findings of fact, stated that 'there was a lack of substantial evidence upon which the Respondent's Board predicated its finding the petitioner knowingly received stolen property * * *.'Id., at 904 of 291 N.E.2d.This court responded as follows:

'The testimony of the White brothers was relevant and material.The trial court chose to disregard such testimony because of the credibility of the witnesses.The credibility of witnesses and the weight to be given their testimony is, however, a question for the...