Downing v. City of Columbus

• Decision Date: 31 March 1987
• Docket Number: No. 07A01-8607-CV-17,07A01-8607-CV-17
• Citation: 505 N.E.2d 841
• Parties: Bryant DOWNING, Randall Applegate and David Kittle, Appellants (Plaintiffs Below), v. The CITY OF COLUMBUS, Indiana Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 841

505 N.E.2d 841

Bryant DOWNING, Randall Applegate and David Kittle Appellants (Plaintiffs Below), v. The CITY OF COLUMBUS, Indiana Appellee (Defendant Below).

No. 07A01-8607-CV-17.

Court of Appeals of Indiana First District.

March 31, 1987.

Rehearing Denied May 21, 1987.

John C. Ruckelshaus, John F. Kautzman, Ruckelshaus, Roland, Hasbrook & O'Connor, Indianapolis, for appellants.

Peter Campbell King, Karon E. Perkins, Columbus, for appellee.

ROBERTSON, Judge.

The plaintiff-appellants Bryant Downing, Randall Applegate and David Kittle appeal from the trial court's granting of summary judgment in favor of the defendant-appellee City of Columbus, Indiana.

We reverse and remand in part and affirm in part.

The factual basis of this appeal is that the three appellants are employed as police officers by the City of Columbus. They are also members of the Indiana National Guard. The City of Columbus promulgated a personnel policy which stated that employees on military leave would receive their regular pay less pay received from the military. Upon completion of the required two-week annual military training by the appellants, the City of Columbus issued them paychecks which had an amount equal to their military pay deducted therefrom. The appellants filed suit to recover the difference in pay, with this appeal resulting.

The issues argued on appeal are stated as:

1. Whether the trial court erred and acted contrary to law in its interpretation and construction of Indiana Code 10-2-4-3 in concluding that policemen who serve the Indiana National Guard are not penalized by a municipal employer's failure to pay them regular wages while serving their state and country.

2. Whether the trial court erred and acted contrary to law in ruling that public employee payment of National Guard and Reserve personnel is a matter of substantive local self-government to be exclusively determined by the local municipality.

3. Whether the trial court erred and acted contrary to law in ruling that the actions of the City of Columbus, Indiana were valid and protected by the statutory immunity of the Indiana Tort Claims Act.

4. Whether the trial court erred and acted contrary to law in ruling that the Plaintiffs were not entitled to attorney fees under the "private attorney general" and/or "common fund" exceptions to the American Rule when Plaintiffs' lawsuit effectuates a strong national policy and benefits hundreds of other people similarly situated.

The statute from the Indiana Military Code (I.C. 10-2-1-1 et seq.) involved in the first issue, IND.CODE 10-2-4-3, reads:

Person entitled to leave of absence from civilian duties.--Vacations.--All officers and employees of the state and of any county, township, municipality or school corporations thereof, who are members of the Indiana national guard or of reserve components or the retired personnel of the naval, air or ground forces, shall be entitled to leave of absence from their respective duties, in addition to regular vacation period, without loss of time or pay for such time as the members of the national guard are in the military service on training duties of the state of Indiana under the order of the governor as commander in chief, or as members of any reserve component under the order of the component authority thereof, for periods of not to exceed fifteen (15) days in any one calendar year. [Acts 1953, ch. 187, Sec. 403; 1955, ch. 75, Sec. 9]. (emphasis added).

We are of the opinion that the trial court did not correctly interpret I.C. 10-2-4-3 for the reason that the statute plainly states that employees of any municipality shall be entitled to a leave of absence without loss of pay. When a statute contains clear and unambiguous language, the only rule of construction necessary is that words and phrases shall be taken in their plain or ordinary and usual sense. Daughtery v. State (1984), Ind.App., 466 N.E.2d 46.

As the appellants point out, two different paths are taken by statutes relating to military pay:

While some statutes expressly provide that employees be compensated only to the extent that their civilian pay exceeds their military pay, courts have held that statutes which require that employees be granted leaves of absence "without loss of pay" require the employer to provide the full amount of the employee's civilian compensation. 8 A.L.R. 4th 704, at 707.

An example of a statute which reflects the City's position and adopted by the trial court is 20 Del. C. Sec. 181(c) (since amended) which reads in pertinent part:

Any employee of this State while on state duty on account of an emergency as listed in Sec. 171 of this title shall be paid for each day of such state duty an amount equal to his regular pay for such day's employment as an employee of this State less any pay and allowances provided for under subsection (a) of this section.

Other states have statutes similar to I.C. 10-2-4-3 which provide for employees of the state and, in many instances, other governmental entities, to be paid both civilian and military pay while on active military duty pursuant to orders issued by the appropriate military authority. It is common in these statutes to place a time limit of from fifteen to thirty days a year during which pay from both sources can be collected. As will be seen in subsequent discussion, the weight of authority favors the appellants.

The New Jersey statute, R.S. 38:23-1, N.J.S.A., comparable to I.C. 10-2-4-3, also employs the term "without loss of pay or time". In applying that statute it was held that a park employee was entitled to both his civilian and military pay while engaged in field training. Parks v. Union County Park Com. (1950) 7 N.J.Super. 5, 71 A.2d 651. Additionally, the comparable Oklahoma statute, 44 O.S. 1973 Supp. Sec. 209, which specifies "with full pay", requires the payment of both civilian and military pay. Reed v. Tulsa (1977 Okla.) 569 P.2d 451.

The Iowa statute dealing with the same subject matter is I.C.A. Sec. 29A.28. In determining under that statute that officers and employees of the state are entitled to up to thirty days leave of absence "without loss" of pay, the Iowa Attorney General has determined that qualified National Guardsmen are entitled to usual civilian pay during annual training, Op. Iowa Atty. Gen., Aug. 22, 1956, and that the deduction of military pay from regular salary is not authorized, Op. Iowa Atty. Gen., June 8, 1956. Moreover, this statute is to be liberally construed. Gibbons v. Sioux City (1951), 242 Iowa 160, 45 N.W.2d 842.

A Minnesota statute, M.S.A. Sec. 192.26, is also very similar to I.C. 10-2-4-3 in that it provides for up to fifteen days of military service "without loss of pay". In Byrne v. Independent School Dist. No. 237 (1975), 305 Minn. 49, 232 N.W.2d 432, the firing of a tenured school teacher because of his absence to attend Command and General Staff College was construed by the school board as a breach of contract. In reversing the school board, the Minnesota Supreme Court said:

The sole issue presented on appeal is one of statutory construction. Underlying statutes preserving employment rights for citizens who serve the military is the basic principle that a person who serves in the armed forces should not be penalized for that service in civilian life. Tilton v. Missouri Pacific R. Co., 376 U.S. 169, 84 S.Ct. 595, 11 L.Ed.2d 590 (1964); Morgan v. Gulf M. & O.R. Co., 405 F.2d 415 (8 Cir.1969). These provisions are liberally construed so as to effectively implement their basic purposes, and are available to all who perform military service, whether that service is voluntary or involuntary. Rudisill v. Chesapeake & O. Ry. Co., 167 F.2d 175 (4 Cir.1948); Boston & Maine R.R. v. Hayes, 160 F.2d 325 (1 Cir.1947). (Footnote omitted). 232 N.W.2d at 434.

The court also held that the teacher was eligible for fifteen days of civilian pay as well as his military pay. Moreover, the Minnesota Attorney General has issued an opinion which states that National Guardsmen and Reservists are entitled to full military pay for the period on duty not to exceed fifteen days as well as his pay from the public agency by which they are employed. Op.Minn.Atty.Gen., 310h-1(a) May 23, 1961.

In Colo. Springs Teachers Ass'n. v. School Dist. (1980), Colo.App., 622 P.2d 602, in dealing with Sec. 28-3-601 C.R.S., a "without loss of pay" statute very similar to I.C. 10-2-4-3, it was held that the civilian pay of teachers could be a matter about which the teachers were free to bargain with the school district insofar as the deduction of military pay is concerned. Such a ruling is based upon the assumption that the teachers were entitled to both civilian and military pay.

Although the record before us is without facts regarding legislative intent, the trial court gratuitously found that the intent of I.C. 10-2-4-3 was to not cause a loss of pay while on military training; however, it was not intended to give a bonus. ¹ A better reasoned approach was taken in Byrne, supra:

Our interpretation of these statutory provisions is supported by all indications of legislative intent. Minn.St. 190.03 provides that the intent of the Military Code (Chapters 190 through 193) is to conform to Federal law relating to the same subjects. Federal law provides reemployment rights in employees of the Federal government and private employers who leave for periods of active or inactive training. Such leaves are not limited to periods of war or national emergency. 50 U.S.C.A.App., Sec. 459(g)(4). Furthermore, it is the express sense of Congress that these same rights be extended to state and municipal employees. 50 U.S.C.A.App., Sec. 459(b)(C).

We believe that our legislature has, with these statutes, provided public employees in Minnesota with comparable military rights. 232 N.W.2d at 435.

In sum, we hold that I.C. 10-2-4-3 means what it says. The specified officers and employees of Indiana governmental units are...