Grisell v. Consolidated City of Indianapolis
| Decision Date | 08 September 1981 |
| Docket Number | No. 2-880A268,2-880A268 |
| Parties | Dan GRISELL, Plaintiff-Appellant, v. CONSOLIDATED CITY OF INDIANAPOLIS, Defendant-Appellee. |
| Court | Indiana Appellate Court |
John C. Ruckelshaus, Walter F. Lockhart, Ruckelshaus, Roland & O'Connor, Indianapolis, for plaintiff-appellant.
John P. Ryan, John L. Lisher, Indianapolis, for defendant-appellee.
Plaintiff-appellant Dan Grisell (Grisell) appeals a judgment of the Marion Superior Court, Civil Division, that upheld the action of the Merit Board of the Consolidated City Police Force of Indianapolis demoting him from sergeant to patrolman in a disciplinary proceeding for misconduct.
We affirm.
By letter dated December 15, 1978, Acting Chief of Police William Pond notified Grisell that he was charged with violations of Department Rules and Regulations and ordered him to appear before the Board of Captains on December 20, 1978, for a hearing on the charges. A hearing was conducted at which Grisell was not represented by counsel and of which no record was made. At the conclusion of the hearing, the Board of Captains recommended in writing to Acting Chief Pond that Grisell be found guilty on the charges and be demoted in rank from sergeant to patrolman. Acting on the recommendation, Pond so demoted Grisell, effective December 21, 1978.
Grisell appealed to the Indianapolis Police Merit Board where Grisell, represented by counsel, was afforded a full administrative hearing, de novo, on the charges. The Chief, represented by attorneys for the City of Indianapolis, presented evidence as did
Grisell, who testified on his own behalf. The Merit Board sustained Pond's action in a decision entered April 18, 1979. Grisell appealed the Merit Board's action in the Marion Superior Court, Civil Division, and from an adverse decision brings the present appeal.
Grisell presents four issues for review but has consolidated them into one issue for purpose of argument. We perceive two distinct questions appropriate for our consideration.
I. Whether Grisell was denied due process under U.S.Const. Amend. XIV because he was not represented by counsel at the Board of Captains hearing and because no record thereof was made.
II. Whether certain provisions of the "Police Officer's Bill of Rights" are applicable to a hearing conducted before the disciplinary Board of Captains.
Grisell's entire argument is directed toward alleged deficiencies in the Board of Captains hearing stage of police disciplinary procedures. Thus, it is appropriate, before discussing his points of contention, to review the statute prescribing those procedures. Because of its length, we shall summarize and condense those features of the statute that are relevant to the case at bar.
Ind.Code 18-4-12-27 prescribes the disciplinary procedures to be employed by police departments of consolidated cities of the first class; the Consolidated City of Indianapolis, having a population in excess of 250,000, is such a city. 1 The ultimate authority over discipline of police force members is given to the chief of police or his designee (Chief). When a police officer is under investigation for violation of one or more of nine listed infractions, the Chief may suspend the charged officer under certain limitations. The Board of Captains has the duty to assist the Chief in disciplinary matters, but remains subordinate and advisory to the Chief. Charges against an officer are submitted to the Board of Captains which, following an investigation, makes written findings of fact and recommendations as to the merits of filing charges against the officer and submits them to the Chief. The Chief may, in his discretion, order the accused officer to appear before the Board of Captains on the charges recommended by the Board, and if he does so, the Board of Captains shall conduct a hearing. Following the hearing, at which the accused officer may have witnesses subpoenaed to testify in his behalf, the Board of Captains votes to determine the guilt or innocence of the accused. The statute is silent as to whether the accused officer may be represented by counsel before the Board of Captains hearing or whether the proceedings are to be recorded and transcribed. Regardless of its determination on the issue of guilt, the Board of Captains reduces its findings to writing. If guilt is determined, the Board of Captains makes recommendations for punishment. The findings and recommendations are then referred to the Chief and are made available to the accused officer. The Chief may then concur with the Board of Captains, or reverse the Board of Captains in full or in part. The Chief is empowered to levy punishment including suspension and demotion, and may recommend discharge to the Merit Board.
An officer disciplined under the above procedure may appeal to the Merit Board. The hearing before the Merit Board is an administrative hearing de novo where testimony is recorded. The Chief is represented by the City attorney or his deputy and the accused officer may be represented by counsel of his choice.
The evidence before the Merit Board consists of the findings of fact and recommendations of the Board of Captains, the written charges and the determination of the Chief upon the charges, and any other evidence requested by the Merit Board or presented by the aggrieved officer. The Police Merit Board has power to partially or fully affirm the Chief's determination, or reverse it in whole or in part, and order the officer reinstated.
An officer aggrieved by the decision of the Merit Board may file a verified petition for review in the superior or circuit court of the county within thirty days of the written decision. Judicial review of the record is then undertaken without intervention of a jury, a decision is rendered, and either party may appeal.
Also at issue are provisions of the "Police Officer's Bill of Rights" (Bill), particularly Section 4, subsections G and J thereof. The trial court found that the Bill was approved by the Indianapolis Police Merit Board effective November 1, 1978. Section 4 of the Bill enumerates certain rights possessed by an officer under investigation or subject to interrogation for any reason that could lead to disciplinary action, demotion, dismissal, or criminal charges. The provisions at issue entitle the accused officer, upon his request, to representation by counsel and to have the proceedings recorded.
Issue I. Due Process
Grisell claims his rights under the due process clause of the Fourteenth Amendment to the United States Constitution were violated by the proceedings before the Board of Captains at which he was not represented by counsel and at which no transcription or recording was undertaken. He does not challenge as violative of due process the procedures followed at the hearing before the Merit Board or the propriety of the manner in which it was conducted. He questions neither the quality or sufficiency of the evidence presented at that hearing nor the suitability of the discipline imposed. He directs us to no event that prevented his having a full and fair hearing before the Merit Board. Though he claims generally to have suffered prejudice by not having counsel or a record made at the Board of Captains hearing, he alleges no specific prejudice to have been manifested. He claims no surprise or damage to his cause whatever. He contends that he should be entitled to counsel and record whenever facts are developed that would carry over as evidence to a later stage of the disciplinary process.
Grisell's claims as to the absence of a record is based primarily upon the application of Ind.Code 18-4-12-27(f) which states:
We understand Grisell's contention as to the absence of a record to be the following: Under the statute, the evidence before the Merit Board is to include, inter alia, the findings of fact as determined by the Board of Captains. If the Merit Board makes an ultimate determination of guilt, there will always be some evidence (i. e., the Board of Captains' findings) to sustain the decision. Since no record of that hearing was made, it is impossible to determine whether sufficient evidence was presented to support the findings made therein, and any opportunity for meaningful review is denied.
It is clear that a police officer facing a proceeding that could lead to a reduction in rank or discharge enjoys due process rights. In State ex rel. Warzyniak v. Grenchik, (1978) Ind.App., 379 N.E.2d 997, 1000-01, the court stated:
"Before appellant policemen could have been deprived of Fourteenth Amendment guarantees, they must first have had a property interest which was protected by procedural due process. As explained in Board of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548:
'To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it.
He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.'
See also Town of Speedway v. Harris (1976), Ind.App., 346 N.E.2d 646.
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