City of Hammond v. State ex rel. Jefferson, 3-879A237

• Decision Date: 30 September 1980
• Docket Number: No. 3-879A237,3-879A237
• Citation: 411 N.E.2d 152
• Parties: CITY OF HAMMOND, Indiana, Appellant-Defendant, v. STATE of Indiana on relation of Ronald JEFFERSON, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 152

411 N.E.2d 152

CITY OF HAMMOND, Indiana, Appellant-Defendant, v. STATE of Indiana on relation of Ronald JEFFERSON, Appellee-Plaintiff.

No. 3-879A237.

Court of Appeals of Indiana, Fourth District.

Sept. 30, 1980.

Abrahamson, Reed & Tanasijevich, Robert G. Berger, Hammond, for appellant-defendant.

Hilbert L. Bradley, Gary, for appellee-plaintiff.

MILLER, Judge.

This action presents an appeal by the City of Hammond from a superior court order reversing an earlier determination by the Hammond Board of Public Works and Safety that Jefferson, a firefighter, should be suspended from his employment for six months. We affirm the lower court's decision that Jefferson should be reinstated with back pay because he did not receive a fair hearing before the Board. We further find it necessary, however, to remand this cause to the trial court since the record fails to clearly disclose whether the parties have stipulated, as Jefferson contends, the amount of back pay he should receive.

As the briefs and the record in the instant case reveal, Jefferson was suspended without pay following a hearing before the Board on August 28, 1978. That hearing was apparently initiated by a July 5 letter from the fire chief to the Board purporting to detail earlier suspensions for tardiness on the part of Jefferson, and requesting that Jefferson be dismissed by the Board based on his past and current record of rule violations and tardiness. After obtaining a continuance on July 19 to obtain an attorney, Jefferson appeared with counsel on August 7, and at that time requested that the proceedings be dismissed because no prior notice and hearings had been afforded regarding the alleged instances of tardiness and rule violations by Jefferson, and because the Board had already been improperly apprised of such purported infractions by the fire chief's letter. Jefferson also objected that the city attorney, one McIlwain, should not be permitted to sit on the Board as a decisionmaker and to represent the City in establishing the case against Jefferson. McIlwain responded he would act only as a Board member in the proceedings, apparently pursuant to Ind.Code 18-2-1-4.2. ¹ The hearing was then continued until August 28 at the request of the City.

On the 28th, Jefferson renewed his earlier motion to dismiss, and again challenged, by a second motion, the propriety of the city attorney's role in the proceedings. We note that during the evidentiary hearing on the merits which ensued, the city attorney, acting as vice-president of the Board, voted and presided over the disciplinary proceedings while his assistant city attorney acted as prosecutor in proving the charges against Jefferson. After Jefferson's motions were denied and the evidence heard, the Board declined to order his dismissal, but did decide that he should be suspended for 180 days and placed on probation for one year.

As noted above, Jefferson then appealed the Board's findings and order to the superior court, which reversed and ordered him reinstated with back pay. Among the various conclusions of law employed by the lower court to support its judgment, we need only consider one, since it is dispositive of this appeal in favor of Jefferson. In particular, we find it is impermissible, on the facts presented, for the city attorney's office to have participated in both the prosecution and the decisionmaking resolution of Jefferson's case, since he thus was not afforded the fair hearing required by law.

We believe this issue of a city attorney's dual role as prosecutor and judge in cases such as this has already been resolved by the reasoning of our Supreme Court condemning even the appearance of a decisionmaker's bias or impropriety in City of Mishawaka v. Stewart, (1974) 261 Ind. 670, 310 N.E.2d 65. In that case the Court held a Board of Public Works in conducting a disciplinary action against a fireman acted without a quorum when the city attorney, one of only two members of the Board, both sat on the Board and represented the City Fire Department, thus depriving the employee of due process. The Court stated:

"Having served as an advocate for one of two opposing parties in an adversary proceeding involving a constitutionally protected interest, the city attorney cannot be permitted to participate in the determination of the factual issues there formed and contested and subject to such a limited review."

Id. at 678, 310 N.E.2d at 69. The Court thus concluded, in affirming the trial court's order of reinstatement in that case, that

"the countervailing interests in granting adversary hearings that are not only free of impropriety but also give the appearance of being free of impropriety, outweigh the legislatively conceived and understandable interests in the convenience and economy of requiring city attorneys to function in ... (this) dual capacity ...."

Id. at 681-82, 310 N.E.2d at 71.

We do not believe, following the language and reasoning of the Court in City of Mishawaka, supra, that the appearance of impropriety evident in the instant case is in any respect cured merely because the city attorney's vote against Jefferson was not necessary to constitute a quorum and to order his suspension. Thus, although the City of Hammond argues in its brief that even apart from the city attorney, two members of the statutory three-member board voted in favor of suspension, we find compelling the following language supporting the conclusion in City of Mishawaka :

"In the case before us, this...