City of Michigan City v. Austin

• Citation: 442 N.E.2d 705
• Decision Date: 30 November 1982
• Docket Number: No. 3-1281A330,3-1281A330
• Parties: CITY OF MICHIGAN CITY, and Hazel Thomas, Ray Rowe, and James Gillen as Members of the Civil Service Commission for the Fire Department of Michigan City, Indiana, Defendant-Appellant, v. Allen L. AUSTIN, William Pishkur, et al., as Members of a Class of Plaintiffs, and International Association of Firefighters, Local # 475, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 705

442 N.E.2d 705

CITY OF MICHIGAN CITY, and Hazel Thomas, Ray Rowe, and James Gillen as Members of the Civil Service Commission for the Fire Department of Michigan City, Indiana, Defendant-Appellant, v. Allen L. AUSTIN, William Pishkur, et al., as Members of a Class of Plaintiffs, and International Association of Firefighters, Local # 475 Plaintiffs-Appellees.

No. 3-1281A330.

Court of Appeals of Indiana,

Third District.

Nov. 30, 1982.

William Janes, Michigan City, for defendant-appellant.

Richard A. Browne, Gordon A. Etzler, Hoeppner, Wagner & Evans, Valparaiso, James B. Clements, Michigan City, for plaintiffs-appellees.

GARRARD, Judge.

On December 15, 1980 the Common Council of Michigan City enacted an ordinance creating a three member civil service commission to establish policies based on merit for the selection, promotion and discipline of Michigan City firefighters. On April 11, 1981 the International Association of Firefighters Local # 475 (Union) filed suit challenging the statutory validity and constitutionality of the ordinance. On April 30, 1981 the trial court granted a temporary restraining order prohibiting the city from taking any actions pursuant to the ordinance. Both the city and the union moved for summary judgment. On November 25, 1981 the trial court entered an interlocutory order holding the ordinance to be unconstitutional, void and unenforceable. On December 14, 1981 the city filed its assignment of errors and praecipe for appeal. On January 12, 1982, in accordance with Indiana Rules of Procedure, Appellate Rule 4(B)(5)(b), the Court of Appeals of Indiana accepted jurisdiction of this appeal upon the city's petition.

The appellant's first three assignments we restate as asking whether Michigan City had the statutory license to establish by ordinance a merit commission for the selection, promotion and discipline of city firefighters.

The trial court found:

"a. Michigan City as a Second Class City is without statutory power or authority pursuant to the laws of the State of Indiana to enact such a Commission;

b. The Ordinance attempts to regulate and invade an area of responsibility which by statute, has been exclusively and completely given to the Board of Public Works of the City in all phases of the employment relationship of a firefighter and the City of Michigan City, which has been preempted by the State Statute, including the provisions governing hiring, promotions, the tenur[e] act and the pension board law;"

The city asserts that "express enabling legislation" exists authorizing the creation of a merit commission by city ordinance. The trial court found to the contrary that the Board of Public Works had exclusive authority to regulate "all phases of the employment relationship of a firefighter and the city ...." and the ordinance therefore improperly impinged upon the board's statutory authority.

The city contends a proper interpretation of IC 18-1-11 (repealed) yields the statutory authority for the city's merit commission ordinance. It places particular emphasis upon IC 18-1-11-3(a)(2) (1980). We deem a review of IC 18-1-11-1 and IC 18-1-11-2 to also be appropriate.

IC 18-1-11-1 provides:

"The department of public safety shall be under the charge of a board of three commissioners to be appointed by the mayor of such city, as hereinbefore provided: Provided, however, That in cities of the third class, on the adoption of an ordinance therefor, and in cities of the fourth class without such ordinance, the board of public works, in addition to its powers and duties as such board, shall exercise all the powers and perform all the duties in this act assigned to and required of the board of public safety. Not more than two of such commissioners shall be of the same political party. Such commissioners shall each give bond to such city in the sum of three thousand dollars [$3,000], to be approved by and filed with the city comptroller, for the faithful performance of their duties respectively, as required by this act and by ordinance. Such board shall have the care, management, supervision and exclusive control of all matters and property relating to or connected with the fire and police forces, to the fire alarm, telegraph, fire escapes, the inspection of buildings and boilers, market places and the food sold therein, and to pounds and prisons. Such board shall have power to purchase all necessary supplies and apparatus and make all repairs needed in its department, subject to the same provisions as are in this act prescribed for the exercise of similar powers by the department of public works. Such commissioners, in cities of the first class, shall receive an annual salary of twelve hundred dollars [$1,200] each; and, in cities of the second and third classes [class], an annual salary of four hundred dollars [$400] each. Such salaries shall be in full compensation whatever for all services of such commissioners. All persons so appointed shall serve during good behavior and shall be of good moral character and be able to speak and write the English language. Such commissioners shall have power, for cause assigned on a public hearing, and on due notice, according to rules to be promulgated by them, to remove or suspend from office, or for a definite period deprive of pay, any officer or member of such police force, except that detectives may be dismissed at any time by said commissioners, and they shall have power to make general and special rules and regulations for the government and discipline of said force, and to make and promulgate general and special orders to said force, through the superintendent of police, who shall be the executive head of the force: And, provided further, That, in any city in which a board of metropolitan police commission[ers] is now or may hereafter be established by law, such board of metropolitan police commissioners shall have full control and management of the police officers of such city, in accordance with the laws providing for the creation of such boards and prescribing the duties of such police commissioners, and nothing herein shall be construed as affecting the control or management of the police department in any city or cities now or hereafter operating under the laws establishing such board of police commissioners." (Emphasis added.)

The union asserts the above emphasized portion of IC 18-1-11-1 declares the Board of Public Safety to be the exclusive arbiter over all matters of the firefighting force.

The powers of the Board of Public Safety are further delineated in IC 18-1-11-2:

"Any two of the commissioners of public safety shall constitute a quorum. They shall adopt rules and regulations with regard to the time of the holding of regular and called meetings and of giving notice thereof; and shall elect one of their number as chairman, who shall hold such position as long as may be prescribed by the rules of the board. The commissioners shall cause all of their proceedings to be recorded. In cities of the third and fourth classes, they shall designate one of their number to act as clerk; but in cities of the first and second classes, the board may appoint as clerk a person not a member of the board. Such clerk, in such cities of the first and second classes, shall receive a salary of one thousand dollars [$1,000] a year, which may be increased by ordinance to a sum not exceeding fifteen hundred dollars [$1,500]. He shall give bond for the faithful discharge of his duties as clerk of the board of safety in the sum of five thousand dollars [$5,000], to be approved by the mayor and filed with the city controller. Such commissioners shall act only as a board, and no member thereof shall have power to bind the board, or the city, except pursuant to a resolution entered in the records of the board authorizing him to act in that behalf as its authorized agent. The board shall appoint a chief of police, a chief of the fire force and all other officers, members and employees of such fire and police forces, together with a marketmaster, stationhouse keeper, and other officials that may be found necessary for such department of public safety. The annual pay of all policemen, firemen and other appointees shall be fixed by ordinance of the common council; and it shall be lawful in such ordinance to grade the members of such forces and to regulate their pay, not only by rank, but by their length of service. In default of any ordinance fixing the compensation of any member of such fire or police force, such commissioners shall have the power to fix the same, subject to change by ordinance. The commissioners, subject to ordinance, may also fix the number of members of such fire and police forces, and the number of appointees for other purposes. They shall, in like manner, divide such city into police precincts and fire districts; and they shall have power, subject to the laws of the state and the ordinances of the city, to make and promulgate rules and regulations for the appointment of members on such forces, and for their government: Provided That such forces shall be, as nearly as possible, equally divided politically, and no member thereof shall be dismissed except for cause, as provided in the next section. The chief of police shall have exclusive direction and control of the police force, and the chief of the fire force shall have exclusive control and charge of such fire force, subject to the rules, regulations and orders of the department of public safety. In time of peril, danger, riot, extensive conflagration, disorder, or the apprehension thereof, the chief of the fire force and the chief of the police force shall, for the time being, be subordinate to the mayor and obey his orders and directions, anything to the contrary in this act or in the ordinances of such city, or in the regulations or orders of such commissioners of public safety, to the contrary notwithstanding." (Emphasis added.)

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