Gansert v. Meeks
| Decision Date | 25 January 1979 |
| Docket Number | No. 3-278A30,3-278A30 |
| Parties | Daniel L. GANSERT, Appellant-Plaintiff, v. Charles MEEKS, Sheriff of Allen County et al., Appellees-Defendants. |
| Court | Indiana Appellate Court |
David J. Avery, Hayes & Hayes, Fort Wayne, for appellant-plaintiff.
John O. Feighner, Fort Wayne, Theo. L. Sendak, Atty. Gen., Indianapolis, for appellees-defendants.
While serving as a probationary police officer, Daniel L. Gansert was terminated without notification of the cause and without an opportunity for a hearing. In Gansert's complaint, he requested the trial court to declare certain statutory provisions and Merit Board Rules to be unconstitutional. The trial court granted a motion to dismiss filed by Charles Meeks, Sheriff of Allen County, et al. Gansert appeals.
We find no error in the trial court's disposition of this case. We affirm.
The issue we must resolve concerns whether Gansert's appointment as a probationary police officer conferred upon him a property interest which is afforded constitutional protection.
Gansert raises two separate arguments. First, he argues that IC 1971, 17-3-14-7, Ind.Ann.Stat. § 49-2826 (Burns Code Ed.), and Section J, Paragraph 2 of the Allen County Police Department Merit Board Rules, violate the due process guarantees of the Fourteenth Amendment of the Constitution of the United States and Article I, Section 12 of the Constitution of Indiana. Second, he argues that the statutory treatment of probationary police officers violates equal protection guarantees contained in the Fourteenth Amendment and in Article I, Section 23 of the Constitution of Indiana.
The trial court considered Gansert's arguments and then issued the following findings and conclusions:
(a) This Court agrees with petitioner that one purpose of the legislation is 'to provide for the efficient and orderly operation of a county police force.' Summary early termination of new employees found by the Sheriff to perform unsatisfactorily, (and their replacement by others who do) certainly can not be said to constitute an 'irrational' implementation of that policy.
(b) The above classification, as this Court noted, by way of judicial knowledge, is widely used in business and industry and in labor union contracts.
(c) The vesting by the legislature of this limited termination authority in the Sheriff is in turn limited, and its abuses, if any, controlled by the Sheriff's regular accountability to the electorate."
The trial court sustained Meeks' motion to dismiss.
The Indiana statutes relevant to this appeal are as follows:
IC 1971, 17-3-14-6, Ind.Ann.Stat. § 49-2825 provides:
"All county policemen appointed to the department under this chapter . . . shall be probationers and on probation for a period of one (1) year from the date of appointment."
IC 1971, 17-3-14-7 provides:
The relevant Merit Board Rules are as follows: Section J, Paragraphs 1 and 2 provide:
Section D, Paragraph 7 provides:
The statutes and the rules clearly authorized Sheriff Meeks to discharge Gansert without a hearing or appeal. However, Gansert asserts that the authorized procedure violated his constitutional rights to due process and equal protection of the law.
Gansert claims that his employment as a probationary officer constituted a property interest which was guaranteed due process protections.
In order to avail himself of due process protections, Gansert must first show that he had some property interest which was protected by procedural due process. Board of Regents v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; State ex rel. Warzyniak v. Grenchik (1978), Ind.App., 379 N.E.2d 997. A property interest may arise from a statute, ordinance or contract. Morris v. City of Kokomo (1978), Ind.App., 381 N.E.2d 510. In any event, the sufficiency of the claim of entitlement to such a property interest must be decided by reference to state law. Bishop v. Wood (1976), 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684.
Gansert bases his claim of entitlement upon his reading of Section D, Paragraph 7 of the Merit Board Rules. He claims that the rule guarantees that, if his conduct and capacity were satisfactory during his one-year probationary period, he would automatically receive a permanent appointment to the county police department.
Gansert's interpretation of the rule is incorrect. The rule merely states the term of the probationary appointment (one year) and indicates that, if the Sheriff determines that a probationer's conduct or capacity is not satisfactory, then the Sheriff shall notify the probationer that he will not receive a permanent appointment. The Sheriff's determination is not subject to any hearing or appeal. Therefore, it is within the Sheriff's discretion to make. If the probationer receives no notification of non-appointment he will be retained as a permanent policeman. 1
Since Gansert received notification of his termination, his probationary appointment could not result in retention as a permanent policeman. As the trial court concluded in its findings of fact, the standard for satisfactory performance was to be determined and applied solely by the Sheriff without hearing or appeal.
Gansert was aware that his realization of a permanent...
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