Guido v. City of Marion, 671A125

• Decision Date: 22 March 1972
• Docket Number: No. 671A125,671A125
• Parties: John GUIDO, Appellant, v. CITY OF MARION, Appellee.
• Court: Indiana Appellate Court

Page 81

280 N.E.2d 81

151 Ind.App. 435

John GUIDO, Appellant, v. CITY OF MARION, Appellee.

No. 671A125.

Court of Appeals of Indiana, Third District.

March 22, 1972.

Jack B. Welchons, Ryan & Welchons, Marion, for appellant.

Charles E. Herriman, Marion, for appellee; Gemmill, Browne, Torrance, Sisson & Morin, Marion, of counsel.

HOFFMAN, Chief Judge.

This is an appeal from the judgment of the trial court affirming the dismissal from the Marion Police Department of plaintiff-appellant, John Guido, by the Board of Public Works and Safety.

The primary issue presented by this appeal for our consideration is whether Guido was denied due process of law at such hearing, resulting in his dismissal, in which the City Attorney sat as the presiding member of such Board and the Assistant City Attorney acted as advocate.

The dismissal of Guido arose from the filing of a complaint by the Chief of Police of Marion, Indiana, with the Board of Public Works and Safety of that city which, in pertinent part, reads as follows:

'1. That at all times hereinafter mentioned, the said JOHN GUIDO was a policeman on the Police Department of the CITY OF MARION, INDIANA.

'2. That the said JOHN GUIDO has been guilty of violations of Rules numbered 5, Sub Sec. No. D, E. H. K & O of the Rules and Regulations of the Marion Police Department, Marion, Indiana, a copy of which is attached, and laws of the State of Indiana, as set forth in Burns 48--6105 (Ind.Ann.Stat. § 48--6105 (Burns 1963)), including violation of Rules and Regulations of Marion Police Department, neglect of orders, incapacity, conduct injurious to the public peace or welfare and conduct unbecoming an officer, in that

1. That on the 26th day of March, 1970, at approximately 1:00 P.M., the said John Guido missed three City Court trials which accordingly resulted in dismissal of two cases, to-wit: State of Indiana vs. Dale Sashe, and State of Indiana vs. Donna Robey, and the continuance of the case of State of Indiana vs. Damon L. Coss, in violation of standing orders.

2. That on the 26th day of March, 1970, the said John Guido absented himself from duty without permission from his superior officer in charge at City Hall, Marion, Indiana.

'WHEREFORE, the said RICHARD M. HARRIGAN, Chief of Marion Police Department, Marion, Indiana, requests that the BOARD OF PUBLIC WORKS & SAFETY of the CITY OF MARION, INDIANA, hold a hearing concerning the charges set forth above and take such action as is deemed necessary by said Board concerning the suspension or removal of said policeman from the Marion Police Department.' (Emphasis as appears in the record.)

The Board of Public Works and Safety composed of the City Controller, City Attorney and City Engineer, subsequently held a hearing on this complaint pursuant to the following portion of Ind.Ann.Stat. § 48--6105 (Burns 1963): ¹

'(U)pon a finding and decision of the board that any such member has been or is guilty of neglect of duty, or of the violation of rules, or neglect or disobedience of orders, or of incapacity, or absence without leave, or immoral conduct, or conduct injurious to the public peace or welfare or conduct unbecoming an officer, or other breach of discipline, such commissioners shall have power to punish the offending party by reprimand, forfeiture, suspension without pay, dismissal, or by reducing him or her to a lower grade and pay. Upon any investigation of the conduct of any member of the fire or police force, or upon the trial of any charge preferred against any member of either such forces, such board of commissioners shall have power to compel the attendance of witnesses, and to examine them under oath, * * *.'

This hearing resulted in the following decision of the Board of Public Works and Safety:

'At this time I would like to announce the unanimous decision of the Board. There was a finding of fact that the Police Officer John Guido was in violation as set forth in paragraphs 1 and 2 of retortical (rhetorical) paragraph 2 of the complaint. That he was in violation of the rules and orders by missing 3 City Court trials on the 26th day of March, 1970. Also on the 26th day of March, 1970 he absented himself from duty without permission from his Superior Officer. Let the records show that it was the finding that in both of these, that at this time the Board further finds that he should be discharged as a policeman and removed as a police officer from the Marion Police Department. Let the records show that Lloyd Cochran and Paul Holman are present.'

Guido then filed his verified amended complaint appealing the decision of the Board to the Grant Circuit Court. After hearing the evidence, the Grand Circuit Court entered its finding and judgment for defendant-appellee 'affirming the action and decision of the Marion Board of Public Works and Safety.'

Guido then filed his motion to correct errors containing the following specifications:

1. The decision of the trial court is contrary to law;

2. The decision of the trial court is contrary to the evidence;

3. The decision of the trial court is not supported by sufficient evidence;

4. The trial court erred in denying plaintiff's verified motion for default filed May 20, 1970;

5. The trial court erred in granting defendant's motion to allow late filing of the transcript; and

6. The trial court erred in denying plaintiff's verified motion for default filed July 2, 1970.

Such motion to correct errors was overruled by the trial court and this appeal followed.

On appeal Guido has preserved and outlined four issues as follows:

1. Was the decision of the trial court contrary to law?

(a) Did the conflicting roles of the City Attorney and his Assistant render the Board's decision invalid?

(b) Was the Board's decision illegal, arbitrary and capricious?

2. Was the decision of the trial court contrary to the evidence? Was there sufficient evidence to support such decision?

3. Did the trial court err in denying plaintiff's verified motion for default filed May 20, 1970?

4. Did the trial court err in denying plaintiff's verified motion for default filed July 2, 1970?

The first and primary contention argued by Guido is that the conflicting roles of the City Attorney as presiding member of the Board and the Assistant City Attorney as advocate so biased the decision of the Board that Guido was denied due process of law.

At the very outset of our discussion we must point out that where the dismissal of a police officer is in question a hearing before the Board of Public Works and Safety must be full and fair, before an impartial body and conducted in good faith. Tryon v. City of Terre Haute (1963), 136 Ind.App. 125, 133, 193 N.E.2d 377 (transfer denied).

Any decision reached by the Board of Public Works and Safety without affording the accused officer a fair hearing is illegal. State ex rel. Felthoff v. Richards (1932), 203 Ind. 637, 642, 180 N.E. 596.

The Supreme Court of the United States in Wong Yang Sung v. McGrath (1950), 339 U.S. 33, at 50, 70 S.Ct. 445, 454, 94 L.Ed. 616, stated:

'When the Constitution requires a hearing, it requires a fair one, one before a tribunal which meets at least currently prevailing standards of impartiality.'

Even so, a combination of functions in the administrative body is not per se a violation of due process. In Marcello v. Bonds (1955), 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107, the Supreme Court of the United States held to the effect that in regard to deportation of an alien a hearing is not stripped of its impartiality merely because the presiding officer was subject to the supervision and control of officials charged with investigative and prosecuting functions.

In discussing Wong Yang Sund and other important cases on this question, 2 Am.Jur.2d, Administrative Law, § 412, at 223, states:

'However, due process is not necessarily denied by the fact that the hearing is before the same authority which has preferred the charges upon which the hearing is had, or by the fact that the trier of the fact has personal knowledge of the matter in issue or has expressed an opinion that the conduct in question is illegal. The combination in the same person of the functions of investigation or advocacy and the function of deciding is a recognized evil.'

(Footnotes omitted.)

Similarly, several leading cases from various jurisdictions were considered and discussed in 16A C.J.S. Constitutional Law § 628, at 862--863, in the following paragraph:

'In order to comply with the requirements of due process, the hearing granted by an administrative body must be a full and a fair one, before an impartial officer, board, or body free of bias, hostility, and prejudgment; but mere irregularity or error with respect to a hearing cannot be made the basis of a claim of denial of due process, and a person cannot complain of a defect in an administrative hearing as a denial of constitutional rights as long as he obtains a full hearing before a court on the question in issue. The fact that the administrative agency is both the accuser and judge does not deprive accused of due process of law, * * *.'

(Footnotes omitted.)

Having considered this persuasive authority and having further examined the many authorities cited to us by both appellant and appellee, we can only conclude that in regard to hearings before an administrative body such as a Board of Public Works and Safety the determination of whether a person charged has been afforded a fair hearing must necessarily depend on the particular facts of each individual case. See: Gigger v. Board of Fire & Police Com'rs of East St. Louis (1959), 23 Ill.App.2d 433, 163 N.E.2d 541.

In City of Evansville v. Nelson (1964), 245 Ind. 430, at 438, 199 N.E.2d 703, at 707--708, our Supreme Court stated:

'The proceedings as held by the Commission are governed by the general rules of procedure before administrative bodies. This allows for less formality than in civil proceedings before a court in both the charge and...