Gaskin v. Beier

Decision Date18 October 1993
Docket NumberNo. 41A05-9303-CV-115,41A05-9303-CV-115
Citation622 N.E.2d 524
PartiesElvis GASKIN, Appellant-Defendant, v. Ronald E. BEIER, Appellee-Plaintiff.
CourtIndiana Appellate Court

John C. Ruckelshaus, M. Elizabeth Bemis, Ruckelshaus, Roland, Hasbrook & O'Connor, Indianapolis, for appellant-defendant.

Irwin B. Levin, Marilyn A. Moores, Steven J. Halbert, Cohen & Malad, P.C., Indianapolis, for appellee-plaintiff.

BARTEAU, Judge.

May an individual simultaneously serve both as a member of the Town Board of Trustees and as the Town Deputy Marshal? In a suit for injunctive relief brought by Ronald Beier, the Town Marshal, the trial court held that Elvis Gaskin, the Edinburgh Deputy Marshal who also served on the Edinburgh Town Board of Trustees, could not serve both posts. Accordingly, the trial court permanently enjoined Gaskin from "voting on any matter before the Edinburgh Town Council or Board of Trustees of the Town of Edinburgh or from in any manner performing any duties associated with said position." (R. 155). 1 The issue presented on appeal is whether the trial court abused its discretion in granting the injunction.

We reverse.

FACTS

The parties stipulated to the following facts. Ronald Beier was appointed Edinburgh Town Marshal on January 25, 1988. Elvis Gaskin was appointed Deputy Town Marshal on January 5, 1983. In 1987, while still serving as deputy marshal, Gaskin was elected to the Board of Trustees. As a trustee, he has voted on police matters such as town budgets, including the budget for the Town Marshal, and the ability of deputy marshals to take their marked patrol cars home. As deputy marshal, Gaskin's duties include making arrests for violations of state statutes and town ordinances. He is also empowered to take such violators before a court and to retain them in custody. In 1991, Gaskin received $26,340.70 as deputy marshal and $3,878.76 as a trustee.

As Town Marshal/Chief of Police, Beier was eligible to hold membership, and did in fact hold a membership, in the National Association of Chiefs of Police. When this dispute began, Beier was being considered as a candidate for president of that organization. Holding this post, however, was conditioned upon his remaining Chief of Police. At a Board of Trustees meeting held on January 27, 1991, Gaskin expressed his intent to vote on, and in favor of, any motion made to the Board to remove Beier.

On September 11, 1992, Beier filed a Verified Complaint for Preliminary Injunction and Permanent Injunction, alleging that the Board of Trustees was going to vote on whether to retain him as Chief of Police. He alleged that it violated Article II, Sec. 9 of the Indiana Constitution for Gaskin to be the deputy marshal as well as a trustee. He also alleged that Ind.Code 36-8-3-12, which permits law enforcement officials to hold elective offices, violated Indiana's constitution. Beier sought a preliminary and a permanent injunction to prohibit Gaskin either from voting on any matter involving the Edinburgh Police Department or from serving on the Board of Trustees. Beier also sought a temporary restraining order. In an amended complaint, Beier alleged that Gaskin violated Article III, Sec. 1 of the Constitution and that Gaskin engaged in a conflict of interest.

The court granted the temporary restraining order and, after consideration, 2 permanently restrained and enjoined Gaskin

from acting in any capacity as a member of the Board of Trustees as long as he is also employed by Edinburgh's executive branch of government.

DISCUSSION

A prohibitory injunction is an extraordinary equitable remedy which should be granted with caution. Irwin R. Evens & Son, Inc. v. Bd. of the Indianapolis Airport Authority (1992), Ind.App., 584 N.E.2d 576, 583. The burden is on the plaintiff to demonstrate injury which is certain and irreparable if the injunction is denied. Id. In making its decision, the trial court must weigh the harm to the defendant if the injunction is issued against the harm to the plaintiff if the injunction is denied. Id. at 584. The grant or denial of an injunction is within the discretion of the trial court, and will not be overturned unless it is arbitrary or amounts to an abuse of discretion. Id. Gaskin does not argue that Beier has failed to show that Beier would be irreparably harmed if the injunction were denied; rather, he attacks the legal basis on which the injunction was granted.

The trial court determined that I.C. 36-4-4-2 prohibited Gaskin from serving both as a deputy marshal and a trustee. Gaskin contends that this is error because I.C. 36-4-4-2 is only applicable to city government and not to town government. This statute provides:

The powers of a city are divided between the executive and legislative branches of its government. A power belonging to one (1) branch of a city's government may not be exercised by the other branch.

The terms "city" and "town" are classified in the statute as follows:

Municipalities are classified according to their status and population as follows:

                STATUS AND POPULATION                          CLASS
                Cities of 250,000 or more               First Class cities
                Cities of 35,000 to 249,999             Second Class cities
                Cities of less than 35,000              Third Class cities
                Other municipalities of any population         Towns
                

The terms "city" and "town," therefore, are specifically defined in the statute and we must give effect to the meanings assigned the words in the statute. See Sidell v. Review Bd. of Ind. Employ. (1981), Ind.App., 428 N.E.2d 281. Because I.C. 36-4-4-2 uses the term city only, we cannot assume, as did the trial court, that this section applies to towns as well. In fact, an examination of the statutory scheme reveals that such is not the case. Title 36 of the Indiana Code is devoted to "Local Government." Article 4 of this title is entitled "Government of Cities and Towns Generally." The eleven chapters into which Article 4 is separated each designate to which type of municipality the chapter applies: chapters 1 and 2 apply to all municipalities, I.C. 36-4-1-1 and I.C. 36-4-2-1; chapter 3 applies to all municipalities except consolidated cities, I.C. 36-4-3-1; chapter 4 applies to all cities, I.C. 36-4-4-1; and chapters 5 through 7 and 9 through 11 all apply to second and third class cities. (Chapter 8 covers the classification of cities).

This statutory scheme demonstrates that the legislature intended certain provisions to apply only to cities. According to I.C. 36-4-4-1, chapter 4 applies only to cities. Thus, I.C. 36-4-4-2 does not, as the trial court concluded, apply to cities and towns. Edinburgh is a town. Therefore, we agree with Gaskin that the court erred in determining that I.C. 36-4-4-2 applied to towns, and that Gaskin is prohibited from serving as trustee by virtue of this statute.

Gaskin argues that I.C. 36-8-3-12 permits him to hold office on the Board of Trustees while serving as deputy marshal. This statute, which became effective in its present form in 1987, provides:

Members of the safety board and members of any township, town, or city (including a consolidated city) police department, fire department, or volunteer fire company (as defined by IC 36-8-12-2) may:

1) be candidates for elective office and serve in that office if elected;

2) be appointed to any office and serve in that office if appointed; and 3) as long as they are not in uniform and not on duty, solicit votes and campaign funds and challenge voters for the office for which they are candidates.

In Schloer v. Moran (1985), Ind., 482 N.E.2d 460, cited by Beier, the court addressed whether the previous version of this statute would prevent a police officer from being a candidate for office. The previous version of this statute provided:

Members of the safety board and members of the police or fire department may be candidates for elective office and may, as long as they are not in uniform and not on duty, solicit votes and campaign funds and challenge voters for the office for which they are candidates.

The court held that while I.C. 36-8-3-12, as it existed at that time, would prevent the police officer from serving in office, it did permit the police officer to be a candidate for office. The statute as amended, however, specifically permits a member of the safety board of any township, town or city to be a candidate for and to serve in elective office.

Beier also argues that I.C. 36-8-3-12 contravenes Article II, Sec. 9 of the Indiana Constitution:

No person holding a lucrative office or appointment under the United States or under this State is eligible to a seat in the General Assembly; and no person may hold more than one lucrative office at the same time; except as expressly permitted in this Constitution. Offices in the militia to which there is attached no annual salary shall not be deemed lucrative.

The question is whether the office of trustee and of deputy marshal are both lucrative offices. A "lucrative office" is defined as "an office to which there is attached a compensation for services rendered." Book v. State Office Building Comm. (1958), 238 Ind. 120, 149 N.E.2d 273, 289. Both parties agree that Gaskin received compensation for both positions and that the position on the Board of Trustees is a lucrative office. However, Gaskin argues that the deputy marshal is not an "office" within the meaning of Art. II, Sec. 9.

The distinction between a "public officer" and an "employee" has been explained by this court as follows:

An office, as opposed to an employment, is a position for which the duties include the performance of some sovereign power for the public's benefit, are continuing, and are created by law instead of contract.

Generally, one who holds an elective or appointive position for which public duties are prescribed by law is a "public officer." ...

An officer is also distinguished by his power of supervision and control and...

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