City of Lawrence Utilities Serv. Bd. v. Curry
| Decision Date | 08 June 2016 |
| Docket Number | No. 49A02–1506–CT–699.,49A02–1506–CT–699. |
| Citation | 55 N.E.3d 895 |
| Parties | CITY OF LAWRENCE UTILITIES SERVICE BOARD, City of Lawrence, Indiana, and Mayor Dean Jessup, individually and in his Official Capacity, Appellants–Defendants, v. Carlton E. CURRY, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Rosemary L. Borek, Stephenson Morow & Semler, Indianapolis, IN, Attorney for Appellant.
Mickey J. Lee, Maurice Wutscher LLP, George W. Pendygraft, George W. Pendygraft, P.C., Indianapolis, IN, Attorneys for Appellee.
, Judge.
[1] An Indiana statute clearly provides that a utility service board may terminate a superintendent for cause after providing an opportunity for a hearing. The question with which we are confronted is whether this is the exclusive manner in which a utility superintendent may be terminated. We find that it is not.
[2] The City of Lawrence (the City), the City of Lawrence Utilities Services Board (the USB), and Mayor Dean Jessup (collectively, the Government) appeal the trial court's order, which granted summary judgment in favor of Carlton Curry on Curry's wrongful discharge claim and denied the Government's summary judgment motion on Curry's claim for intentional interference with employment relationship. Curry cross-appeals, arguing that the trial court erroneously granted summary judgment in favor of the Government on his claim under the Wage Payment Statute.
[3] We find as follows: (1) the mayor had authority to terminate Curry's employment; (2) as such, Curry has no right to prevail on an intentional interference with employment relationship claim; and (3) Curry is not entitled to recover under the Wage Payment Statute. We reverse the judgment of the trial court with respect to the wrongful discharge and intentional interference with employment relationship claims and remand with instructions to enter summary judgment in the Government's favor on those two counts. We affirm the trial court's order with respect to the Wage Payment Statute count.
[4] In May 2006, Lawrence voters passed a referendum authorizing the creation of the USB, which placed utility management under municipal control. The City Council then passed an ordinance creating the USB with an effective date of January 1, 2008. The ordinance provides that the USB consists of five members, three of whom are appointed by the mayor and two of whom are appointed by the council. The ordinance does not discuss the utility head position. At a March 12, 2008, USB meeting, the title of the utility head position was changed from “director of utilities” to “director/superintendent.”2 Appellants' App. p. 176, 190–92.
[5] The USB requires mayoral approval to issue bonds, incur debts, or raise rates. Therefore, it is important for the mayor to be on board with USB's major policy initiatives. Utilities are financed through water and sewage usage fees and utility employees are paid through the City, though the USB has a budget that is separate from the City's general fund.
[6] In 2009, then-Mayor of Lawrence Paul Ricketts approached Curry about becoming USB superintendent, and Curry agreed to take the position. At the August 12, 2009, USB meeting, Mayor Ricketts recommended Curry for the position, and—with no discussion—board members voted unanimously in favor of appointing Curry. During Curry's tenure, he worked closely with Mayor Ricketts regarding the direction of the USB and all major policy initiatives. One USB initiative that both Curry and Mayor Ricketts advocated for strongly was the construction of a wastewater treatment plant for Lawrence.
[7] In November 2011, Mayor Ricketts was defeated in the general election by Dean Jessup. Mayor-elect Jessup's transition team sent correspondence to all department heads, including Curry, inviting them to submit a resume and letter of interest if they wished to remain in their positions. Curry submitted a letter of interest and resume, met with the transition team's utility committee, and gave a presentation. Curry also communicated directly with Mayor-elect Jessup.
[8] Mayor-elect Jessup learned about the proposed wastewater treatment plant, which would cost approximately $150 to $200 million. Mayor-elect Jessup had concerns about the cost of the project and was not convinced that it was a good plan. Curry advocated strongly for the project, and Mayor-elect Jessup believed that if Curry was retained as USB superintendent, there would be frequent conflict if the mayor decided to forego the wastewater treatment plant project. Mayor-elect Jessup wanted a USB superintendent who would implement his goals and objectives and give balanced advice rather than advance his own point of view.
[9] When Mayor Jessup took office on January 1, 2012, he asked for the resignations of all mayoral appointees on every city board. The three mayoral appointments on the USB complied and were replaced with Mayor Jessup's appointees. Curry continued to advocate strongly for the wastewater treatment plant. Mayor Jessup felt that he was being given a sales pitch, and his concerns about his working relationship with Curry increased. Mayor Jessup decided to replace Curry with John Solenberg. Curry was notified by letter and in person on January 19, 2012, that his employment would end on January 20. Mayor Jessup submitted a recommendation for Solenberg as the new USB superintendent, and the USB approved Solenberg unanimously.
[10] On December 21, 2012, Curry filed a complaint against the Government, asserting both federal and state law claims. The case was removed to federal court; on March 3, 2014, the district court granted summary judgment in favor of the Government on all of Curry's federal claims and remanded the case to state court for consideration of Curry's remaining claims based in state law. The remaining claims are as follows: Count I, Wrongful Discharge; Count III, Defamation; Count IV, Intentional Interference with Employment Relationship; and Count V, Wage Payment Statute Claim.
[11] On October 22, 2014, Curry filed a motion for partial summary judgment on Count I, and on November 25, 2014, the Government filed a motion for summary judgment on all counts. Following briefing and a hearing, on April 6, 2015, the trial court granted summary judgment in favor of Curry on Count I (wrongful discharge), granted summary judgment in favor of the Government on Counts III (defamation) and V (Wage Payment Statute), and denied summary judgment on Count IV (intentional interference). The Government now brings this interlocutory appeal of the trial court's order with respect to the wrongful discharge and intentional interference claims, and Curry cross-appeals with respect to the Wage Payment Statute claim.
[12] Our standard of review on summary judgment is well established:
(quoting T.R. 56(C) ). “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences.” Id. (internal citations omitted).
State v. Int'l Bus. Machs. Corp., 964 N.E.2d 206, 209 (Ind.2012).
[13] The Government argues that the trial court erred by granting summary judgment in Curry's favor on the wrongful discharge claim and by denying summary judgment on the intentional interference with employment relationship claim.
[14] Curry's wrongful discharge claim relies on Indiana Code section 8–1.5–3–5
, which applies to municipal utility superintendents. Section 5(d) provides that “[t]he superintendent may be removed by the board for cause at any time after notice and a hearing.” It is undisputed that Curry was not removed for cause and did not receive notice or a hearing.
[15] We begin our analysis by focusing on the plain language of the statute. While section 5(d) provides that the superintendent “may” be removed by the board for cause, it does not say “may only ” be removed in that fashion. It is well established that we will not add something to a statute that the legislature has omitted. E.g., Gresham v. State, 414 N.E.2d 313, 314–15 (Ind.App.1980)
. The clear implication of our General Assembly's decision to omit the word “only” from section 5(d) is that this method of employment termination is not the sole way in which the superintendent may be terminated. Instead, the statute plainly provides that if the USB intends to seek termination of the superintendent for cause, the superintendent is entitled to notice and a hearing before the termination is complete. The statute is silent as to termination without cause. We infer from the legislature's silence that the authority to terminate a superintendent without cause is not vested solely in the USB; similarly, we infer that the superintendent is not entitled to notice or a hearing when he is terminated without cause.
[16] This interpretation of section 5(d) has to be correct to avoid an absurd result. If we were to find that a utility superintendent may only be terminated for cause, then the position would essentially be a lifetime appointment akin to a federal judge who retains her seat for life unless she commits an impeachable offense. We do not believe that the General Assembly intended to vest such robust job security in the position of utility superintendent.
[17] Furthermore, we agree with the...
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City of Lawrence Utilities Serv. Bd. v. Curry
...discharge claim, and remanded with instructions to grant summary judgment in favor of the City. City of Lawrence Utils. Serv. Bd. v. Curry, 55 N.E.3d 895, 899–902 (Ind. Ct. App. 2016). Curry sought transfer, which we granted, thereby vacating the opinion of the Court of Appeals. City of Law......