Ely v. City of Montpelier

• Decision Date: 19 December 1969
• Docket Number: No. 1,No. 1068,1068,1
• Citation: 253 N.E.2d 286,146 Ind.App. 175
• Parties: Harry ELY, Appellant, v. The CITY OF MONTPELIER, Appellee. A 181
• Court: Indiana Appellate Court

Page 286

253 N.E.2d 286

146 Ind.App. 175

Harry ELY, Appellant, v. The CITY OF MONTPELIER, Appellee.

No. 1068 A 181.

Appellate Court of Indiana, Division No. 1.

Dec. 19, 1969.

David C. Mosier, Portland, for appellant.

Peterson, Ervin & Barry, Hartford City, for appellee.

COOPER, Judge.

This matter comes to us from the Blackford Circuit Court wherein said Court sustained the decision of the Board of Public Works and Safety of the City of Montpelier, Indiana, which Board, after notice and hearing, dismissed the appellant from the police force of the city of Montpelier.

The record before us reveals that the appellant was appointed to the Montpelier Police force on December 1, 1958, and that he remained an active member thereof until April 5, 1967, at which time he was dismissed by the Board of Public Works and Safety.

The record further reveals that on March 23, 1967, the Board of Public Works and Safety (hereinafter referred to as board) caused to be served upon the appellant certain averred charges of alleged misconduct together with a notice of hearing on said charges.

The pertinent parts of said charges and notice to the appellant are as follows:

'NOTICE TO HARRY ELY

'You are hereby notified that on the 5th day of April, 1967, at 8 o'clock P.M. in the Council Room in the City Hall of Montpelier, Indiana, the Board of Public Works and Safety will hold a hearing to ascertain whether or not Harry Ely should be dismissed from the Police Force of the City of Montpelier, Indiana, as a result of charges filed against such officer by the Chief of Police of the City of Montpelier charging him with gross neglect of duty and incapacity to perform the office of police officer of the City of Montpelier and neglect and disobedience of orders.

'SIGNED AND DATED this 23rd day of March, 1967.'

'REQUEST FOR DISMISSAL

'Comes now Frank Powell, Chief of Police of the City of Montpelier, Indiana, and says that Harry Ely should, after hearing, be dismissed from the Police Force of the City of Montpelier, Indiana, for the following reason:

'1. That he has been guilty of neglect of duty; that he has been guilty of the violation of rules; that he has been guilty of neglect and disobedience of orders; and he has been guilty of incapacity, the particulars of which are as follows:

'(a) That on the 12th day of April, 1965, he was notified at 4:20 A.M. by Kenneth Carmichael, employed as a delivery man for Racer's Bakery, that the east door of the Montpelier High School Building was open and that he should check it and see that it was locked in order to protect and preserve public property. That he refused to, in direct disobedience to the orders given him on numerous occasions by this Chief, and which failure and refusal constituted a neglect of his duties.

'(b) That on the 2nd day of May, 1965, Harry Ely failed and refused to arrest John Clark, Jr., who he found in an intoxicated condition on a public street in front of Neff's Garage. That instead of arresting the intoxicated person, he called the City Judge out of bed at 3:00 A.M. and wanted to know what to do with him. That such action on his part constituted a neglect of his duties as a police officer and disobedience to orders that had been given to him.

'(c) That on the 3rd day of June, 1966, John Naab, Principal of the H. G. Morgan Grade School located in the same block as the Police Station, called Officer Ely and requested him to come to the Grade School to settle a disturbance which had been caused by a group of boys cussing the janitor who had asked them not to play ball in front of a glass door. The call was made at 9:10 A.M., and was not answered until 10:25 A.M. by Officer Ely. Officer Ely was requested by Mr. Naab to notify the Chief of Police of this call, and failed to do so. That the actions of Officer Ely constituted neglect of duties and disobedience of orders.

'(d) That on the 19th day of June, 1965, Officer Ely failed to arrest Winstead Turner for intoxication after he was obviously intoxicated and had been involved in an accident between his truck and an automobile driven by Vonona Spaulding. A number of witnesses all told me that Mr. Turner was intoxicated and that they would file charges against him. Officer Ely made out the accident report, took the keys to Turner's truck and drove away. He was not there when I arrived at the scene in response to a call from Reverend Bob Olson who was a witness to the accident. Mr. Olson signed an affidavit of public intoxication, and I got a warrant from the City Judge. I drove Reverend Olson to his home, and as he was getting out Officer Ely drove up. We then went to the Melody Bar and arrested Mr. Turner. After he was placed in jail I gave Mr. Ely warning that he was neglecting his duties as a police officer and violating the rules. He made no denials at that time. I subsequently learned from Phil Said, an employee of the J & B Chevrolet Sales whose dealer's plates were on the Turner truck, that Officer Ely had called him and wanted to know what to do with the truck. Mr. Said also informed me that while he was trying to give Ely an answer, Officer Ely said 'The Hell with it' and hung up.

'(e) That on August 6, 1965, I was called by Mable Penrod who informed me that her husband Virgil Penrod, from whom she was separated, came to her home, knocked on the door and wanted in. She said he was intoxicated, had a shotgun, and told her he was going to kill himself. He wanted her to take the gun and check it and prove it had a shell in it. She refused to do this because she said he was not getting her fingerprints on the gun. She then shut the door. She then said she heard a shotgun blast and heard him fall to the porch and kick around. She said she was extremely scared, and she called the police number and talked to Officer Ely who was on duty and answered the call in approximately 3 or 4 minutes. She said when Ely arrived Penrod was lying on the porch and when he saw Ely he got to his feet and Ely asked him if he was all right. He stated that he was, and Ely started to leave. Mrs. Penrod then asked Ely if he was going to leave the gun, and Ely stated that he did not have a gun. She had him come back up on the porch and check the gun, and Penrod told him he had shot a bird that afternoon. So Mr. Ely turned around and left. Mrs. Penrod said that Officer Ely, when he came to the house, did not talk to her only to say he did not have a gun and then when he came back to check the gun Officer Ely did not suggest to Mrs. Penrod that she had a right to file charges for disorderly conduct nor did he take the gun into his possession to prevent any reoccurrence of this conduct. I warned Officer Ely at this time that he was not conducting himself as an officer should and was neglecting his duty to safeguard the citizens of the community.

'(f) On September 5, 1965, Arnold Raver called the Police Station at 8:00 P.M. The call light came on, and in five minutes it was turned off, indicating that the call had been taken on the recorder. At the time Mr. Raver called for the police, a car with a colored man and his wife and children in it had broken down in front of Neff's garage. The man had come to the Shell Station, of which Arnold Raver was the proprietor, and Raver had examined the car and told him what the trouble was. The colored man and his family were to wait until somebody came after them to take them home. While they were waiting two cars loaded with men kept driving past the car of the colored man and told him on a number of occasions that they would give him just ten minutes to get out of town. Raver stated that the colored man was Raver to call the police. Raver called the Police Station at 8:00 P.M., and, as stated before, the light went off in five minutes, so he told the colored people to sit in the station with him until the police arrived. Raver stated that when he called the station he heard the recording sound and then said 'Would you come to the Shall Station.' About 8:45 P.M. Harry Ely drove up in front of the Hoosier House, which is just across the street from the Shell Station, and Raver said 'Harry Ely, come over here', and he told him what he wanted. Ely gave no excuse for not answering the call, and Raver was extremely upset because of the state of fear in which the colored man was in for his children. The call was not reported by Mr. Ely on the log at the Police Station. Such conduct on the part of Officer Ely constituted a neglect of duty and violation of orders.

'(g) On July 17, 1966, Edna Johnson called the Police Station at 6:25 _ _.M. stating that a car was parked on the sidewalk in front of the Winters' residence and that people were having to walk around it to get past. From her home she could see the car and the City Building. She watched, and Mr. Ely did not answer the call. After she reported this to me, I questioned Mr. Ely about it and he stated that everybody parked on the sidewalk. Such conduct on the part of Harry Ely constituted a neglect of duty and a violation of orders.

'(h) That on November 8, 1966, Officer Ely, while driving the police car, drove off the side of the road on West Monroe Street in front of the Mary Sutton residence, down into the ditch, and sideswiped a post with the right rear fender. No explanation of this accident other than carelessness or incapacity of the officer in driving was presented by Officer Ely.

'(i) On December 16, 1966, Officer Ely, while driving the police car, backed such car into a tree at the edge of the parking lot back of the Police Station, damaging the right rear fender.

'(j) That on January 12, 1967, Officer Ely, while driving the police car, had damage to the hood of the car just above the grill. When I inquired concerning the cause of such damage, he informed me that a Christmas tree had blown on the road in front of him and he had hit it.

'(k) That on March 4, 1967, I was informed by Mayor Buckmaster that he had called Officer...