City of North Vernon v. Brading

• Decision Date: 26 June 1985
• Docket Number: No. 4-1283A425,4-1283A425
• Citation: 479 N.E.2d 619
• Parties: CITY OF NORTH VERNON, Appellant (Defendant Below), v. Stanley BRADING, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 619

479 N.E.2d 619

CITY OF NORTH VERNON, Appellant (Defendant Below), v. Stanley BRADING, Appellee (Plaintiff Below).

No. 4-1283A425.

Court of Appeals of Indiana Fourth District.

June 26, 1985.

Corinne R. Finnerty, North Vernon, for appellant.

David W. Paugh, Montgomery Elsner & Pardieck, Seymour, for appellee.

MILLER, Presiding Judge.

The City of North Vernon, by its Safety Board, dismissed Officer Stanley Brading, a member of the North Vernon Police Department, because of his conviction for check deception. Brading's conviction was later set aside, and he sought review of the Safety Board's decision in the trial court. The trial court ultimately found the Safety Board's decision was not supported by sufficient evidence and reversed it, thereby reinstating Brading. The City now appeals, but we find the trial court acted properly and affirm.

ISSUES

The City's four issues are better condensed into two basic questions:

(1) Did the trial court err in deciding the Safety Board's decision was supported by insufficient evidence and was therefore arbitrary and capricious?

(2) Did the trial court err in ordering Brading's reinstatement with back pay without ever having addressed the issue of back pay and benefits?

FACTS

Brading pleaded guilty in November, 1982, to a charge of check deception (a class A misdemeanor) in Jackson County Court and was assessed a fine and costs totalling $57.00. The charges stemmed from a $30.89 check written on Brading's account, which was without sufficient funds when presented although Brading thought his account had more funds in it when he wrote the check. (Brading's poor bookkeeping habits had led his checking account to be overdrawn numerous times.) When confronted with a warrant on the charge, Brading paid the amount of the check to the establishment involved and decided to plead guilty and pay the fine rather than pay the expense of fighting the charge in court, never imagining such would lead to his dismissal.

On December 6, 1982, the Safety Board convened for a special meeting at which Brading's employment was terminated:

"The meeting then proceeded to the hearing of the matter of the dismissal of Officer Stanley Brading from the North Vernon Police Department. All witnesses were sworn by the Clerk-Treasurer Lulu Belle Webb.

All evidence proffered was heard relating to the following grounds put forth for the dismissal of Officer Brading:

1. Conviction of check deception in the Jackson County Court on November 1, 1982.

2. Conduct unbecoming an officer arising out of the above described conviction.

Upon consideration of all the evidence relating to the above referred grounds for dismissal, the Safety Board members present unanimously made the following specific findings of fact:

1. That Officer Stanley Brading was convicted of check deception, a class A misdemeanor, in the Jackson County Court on November 1, 1982.

2. That said conviction is a ground for dismissal from the North Vernon Police Department.

3. That Officer Stanley Brading's conduct in issuing the insufficient funds check which formed the basis of the above described conviction constitutes conduct unbecoming an Officer of the North Vernon Police Department and therefore constitutes grounds for dismissal from the Department.

4. That Stanley Brading should, therefore, be dismissed from service as an officer of the North Vernon Police Department.

It is therefore ordered that Stanley Brading be, and hereby is, dismissed from service as an officer of the North Vernon Police Department this 6th day of December, 1982."

Record, pp. 35-36.

Brading filed a verified complaint, on December 28, for review of the decision, and after a change of venue, the cause came before Bartholomew Circuit Court. On February 11, 1983, Brading was allowed to withdraw his plea of guilty to the check deception charge in Jackson County court, and the trial court granted the prosecutor's motion to dismiss the charges altogether. (There was evidence adduced at the Safety Board hearing that Brading had never received notice that his check had been deficient.) In April, the parties and the court conferred over the exhibits and certain facts such that the court was empowered to render a decision on cross-motions for summary judgment without further hearing. The court issued a three-page order in August, which contained the following pertinent portion concerned with the legality of the Safety Board's decision:

"On February 11, 1983, the Jackson County Court granted the plaintiff's motion to withdraw his guilty plea, and, pursuant to a motion to dismiss filed by the prosecutor, the Court ordered the charge of check deception dismissed.

The plaintiff contends that the evidence of other overdrafts written by him was inappropriately admitted at the hearing, and the defendant's dismissal was not supported by sufficient evidence and therefore was arbitrary and capricious. The defendant has countered by stating that other evidence than that directly relating to the charges listed in the statutorily prescribed notice can be admitted at the hearing and that the dismissal is based upon legal cause and sufficient evidence.

For purposes of this judgment, this Court will assume without deciding that the evidence of other overdrafts written by the plaintiff was properly admitted at the hearing.

As to the issue of sufficiency of the evidence to support the dismissal, the plaintiff specifically states that since the check deception conviction was set aside by the Jackson County Court and thereafter dismissed, the only evidence to support the dismissal was the overdrafts themselves. The Court agrees with the plaintiff in this respect. Indiana Code Section 36-8-3-4(h) states, "The parties ... may produce evidence relevant to the issues ... at the hearing of review." Based upon this type of evidence and the record and decision of the Safety Board, the Court must render its decision I.C. Sec. 36-8-3-4, supra. This indicates a legislative intent that the Court must not only consider what a safety board considers, but those things relevant which a safety board could not or did not consider.

Here, the Court does have the benefit of the knowledge of the setting aside of plaintiff's check deception conviction whereas the defendant's Safety Board did not. Given the absence of the conviction, the evidence, at worst, can be characterized that the plaintiff was a poor record keeper and that in all instances where overdrafts were issued, the plaintiff later met his promises to pay on these drafts. There was no evidence adduced that he ever took items from another without eventually paying for them. This evidence cannot be the predicate of a finding that the plaintiff engaged in conduct unbecoming an officer.

The defendant argues that for the Court to consider the setting aside of the conviction, it would make it untenable in all instances to base a dismissal upon a criminal conviction until the appeal and post-conviction relief process has been exhausted. The Court acknowledges the problems suggested by the defendant; however, the statute permits the Court in this case to consider the subsequent action of the County Court--that is to say, to consider relevant evidence before it--not to ignore it.

The Court concludes that the decision of the defendant is not supported by sufficiency [sic] evidence and that in all events the cause for dismissal, if any, bears no relationship to the plaintiff's fitness for holding office or his incapacity, if any, to discharge his duties. Given this posture, the defendant's actions were arbitrary and capricious. The decision of the defendant should be reversed and set aside, and the defendant should be ordered to follow the prescription of Indiana Code Section 36-8-3-4(i).

IT IS THEREFORE ORDERED that the decision of the Safety Board of the City of North Vernon, Indiana, is hereby reversed and that the defendant is ordered to follow the prescription of Indiana Code Section 36-8-3-4(i). Costs of this action are hereby assessed against the defendant."

Record, pp. 176-77. The City now brings its case to us.

DECISION

When we review a trial court's review of a local police administrative board's decision, we seek to determine whether the trial court has properly viewed such decision. "The trial court may not substitute its judgment for that of the administrative body.... The trial court may not change or modify the disciplinary action taken by the Board without a showing that such action was arbitrary and capricious." Pope v. Marion County Sheriff's Merit Board (1973), 157 Ind.App. 636, 645-46, 301 N.E.2d 386, 391. Within such scrutiny, the trial court may consider, among other things, whether a board's decision is based upon substantial evidence. City of Gary v. Gause (1974), 162 Ind.App. 97, 317 N.E.2d 887. In the instant case, the trial court correctly determined that the Safety Board's decision is not supported by the evidence.

It is important to note that the sole basis for Brading's dismissal was based upon one incident of an insufficient funds check. Other evidence notwithstanding the Safety Board based its decision on that one factor alone:

"2. That said conviction is a ground for dismissal from the North Vernon Police Department.

3. That Officer Stanley Brading's conduct in issuing the insufficient funds check which formed the basis of the above described conviction constitutes conduct unbecoming an Officer of the North Vernon Police Department and therefore constitutes grounds for dismissal from the Department."

Record, pp. 35-36. (Emphasis added.) The City has strenuously argued in its summary of argument section that Brading's inability to properly maintain a record of his checks, with consequent overdrawn periods in his account, and other acts including not informing his superiors of the charge and conviction constitute conduct unbecoming an officer of the North Vernon Police Department. Evidence was...