City of Marion v. Alvarez

• Decision Date: 10 February 1972
• Docket Number: No. 870A144,870A144
• Citation: 151 Ind.App. 133,277 N.E.2d 916
• Court: Indiana Appellate Court
• Parties: CITY OF MARION, Defendant-Appellant, v. Andrew ALVAREZ, Plaintiff-Appellee.

Page 916

277 N.E.2d 916

151 Ind.App. 133

CITY OF MARION, Defendant-Appellant, v. Andrew ALVAREZ, Plaintiff-Appellee.

No. 870A144.

Court of Appeals of Indiana, Second District.

Feb. 10, 1972.

Charles E. Herriman, Gemmill, Brown, Torrance, Sisson & Morin, Marion, George B. Gavit, Ice, Miller, Donadio & Ryan, Indianapolis, for defendant-appellant.

Stephen Johnson, Frank J. Biddinger, Biddinger & Johnson, Marion, for plaintiff-appellee.

SULLIVAN, Judge.

This case comes before us on appeal from the Grant Circuit Court involving a review of a determination by the City Board of Works and Public Safety. The reviewing Court set aside the Board's action discharging Appellee Alvarez from the Marion Police Department, and instead imposed a retroactive but temporary suspension.

The main thrust of appellant-City's argument involves a consideration of IC 1971, 18--1--11--3, being Ind.Ann.Stat. § 48--6105 (Burns 1964), which insofar as pertinent reads as follows:

'. . . If the court finds that the action or decision of the board appealed from should not be affirmed in all things, then the court shall make a general finding, setting out, however, sufficient facts to show the nature of such proceeding and the court's decision thereon, and shall render judgment either reversing the decision of the board, or ordering the same to be modified as the court shall find and adjudge to be proper . . ..'

Appellee-Alvarez had been a policeman for the City of Marion for approximately two years. On November 24, 1969, Alvarez had fallen asleep while guarding a prisoner. The record shows that just prior to this occurrence, Alvarez had taken medication known for its propensity to induce drowsiness. The labels on the bottles introduced as exhibits clearly put Alvarez on notice that drowsiness could (and most likely would) occur. In spite of this, Alvarez took the medication and failed to advise any superior officers that he had done so. After the incident, Alvarez was ordered to appear before the Board of Works and Public Safety (hereinafter referred to as the 'Board'). Following a hearing, the Board discharged Alvarez from the police department. Alvarez requested judicial review of the Board's decision pursuant to IC 1971, 18--1--11--3, supra. He alleged that the Board's decision was illegal, arbitrary, capricious and fraudulent; that the decision was not supported by sufficient evidence, and that he was not given a fair and impartial hearing by the Board. The trial court, or court of review as it functioned here, granted Alvarez' motion for judgment on the pleadings and held:

'1. That the pleadings and record herein reveal that on the 24th day of November, 1969, the Plaintiff, ANDREW ALVAREZ, while on duty and guarding a prisoner, was in fact ill, that the Plaintiff had taken medications on several occasions that date; and that said medications caused his drowsiness and brief period of unconsciousness.

'2. That the decision and punishment of the Board of Public Works and Safety of the City of Marion, Indiana, was too harsh pursuant to the surrounding circumstances and evidence herein and that no legal cause existed which bore a legal relationship to the fitness of the Plaintiff, ANDREW ALVAREZ, from continuing his employment and position as an officer of the Marion Police Department or his capacity to discharge his duties as a Police Officer that would warrant his dismissal from the Marion Police Department.

'3. The Court further finds that the decision of the Board of Public Works and Safety of the City of Marion, Indiana, entered on the 23rd day of December, 1969, dismissing Plaintiff, ANDREW ALVAREZ, from the Marion Police Department, effective the 24th day of November, 1969, be modified for the reason that the same was arbitrary and capricious.

'The Court further finds that for the Plaintiff's neglect of duty and his failure to apprise a superior officer that he was ill and had taken medications on the 24th day of November, 1969, that the Plaintiff, ANDREW ALVAREZ, should be punished by suspension of his duties from the Marion Police Department for a period of twenty-nine (29) days, without pay, from the Marion Police Department, beginning November 24, 1969, and ending December 22, 1969.

'IT IS, THEREFORE, ORDERED AND DECREED, that the decision of the Board of Public Works and Safety of the City of Marion, Indiana, as entered on December 23, 1969, be modified; that the dismissal from the Marion Police Department should be and is hereby vacated and set aside and Plaintiff, ANDREW ALVAREZ, shall be suspended from his duties as a Police Officer of the Police Department of the City of Marion, Indiana, for a period of twenty-nine (29) days, beginning November 24, 1969, and ending December 22, 1969, without pay; that the Plaintiff, ANDREW ALVAREZ, should be and is hereby reinstated as a member of the Marion Police Department of the City of Marion, Indiana, effective December 23, 1969, and the Court further finds that the Plaintiff, ANDREW ALVAREZ, is entitled to receive all salary, wages and/or other allowances owing and due him from the date of December 23 1969, and does hereby order the City of Marion, Indiana, to pay same to Plaintiff instanter from appropriate funds of the City of Marion, Indiana.'

Because of our treatment of the City's principal argument, we do not concern ourselves with other assertions of error. Such argument by the City is that the Grant Circuit Court, in a judicial review of an adminsitrative decision, may not, as it did, substitute its own judgment for that of the Board as to whether Alvarez should be discharged or merely suspended, without making findings of fact to support the court's conclusion that the discharge was too

harsh. THE REVIEWING COURT ABUSED ITS

DISCRETION IN PURPORTING TO MODIFY...