Hardesty v. Bolerjack

• Citation: 440 N.E.2d 490
• Decision Date: 30 September 1982
• Docket Number: No. 3-681A160,3-681A160
• Parties: George J. HARDESTY, Appellant (Plaintiff Below), v. Sheriff Dean BOLERJACK et al. * , Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 490

440 N.E.2d 490

George J. HARDESTY, Appellant (Plaintiff Below), v. Sheriff Dean BOLERJACK et al. [Sheriff Ralph H. DeMeyer,

Sheriff William Richardson] ^*,

Appellees (Defendants Below).

No. 3-681A160.

Court of Appeals of Indiana,

Third District.

Sept. 30, 1982.

Fred R. Jones, Goodrich, Jones & Huff, Plymouth, for appellant.

William H. Albright, William H. Albright, P.C., Robert J. Konopa, May, Oberfell, Helling, Lorber, Campiti & Konopa, South Bend, for appellees.

HOFFMAN, Presiding Judge.

On June 1, 1977, St. Joseph County Sheriff Dean Bolerjack suspended Corporal George J. Hardesty from the St. Joseph County Police Department pending investigation of alleged violations of established rules and regulations. ¹ In addition, Bolerjack filed written charges with the St. Joseph County Sheriff's Merit Board (the Board) seeking the suspension, demotion, or discharge of Hardesty. At the conclusion of several hearings on these charges, the Board directed Bolerjack to discharge Hardesty from his position with the department. The St. Joseph County Superior Court subsequently affirmed the Board's decision, and Hardesty now appeals. ²

Appellant initially contends that the Board failed to enter specific findings of fact which would provide a sufficient basis for judicial review. ³ The Board's decision actually reads as follows:

"The Board, having heard the evidence and testimony, concluding August 2, 1977, concerning the written charges to suspend, demote or discharge George Hardesty, a Corporal in the St. Joseph County, Indiana, Police Department, filed against him by Dean Bolerjack, Sheriff of St. Joseph County, Indiana, dated on or about May 31, 1977, now finds:

"The charges filed alleged that that [sic] George Hardesty did: (1) 'while on duty at the St. Joseph County Airport in 1975, he failed on several occasions to report for duty on time, and failed on several occasions to be present in the security area of the airport when required by the nature of his security duties to be there', in violation of section IX.26 and XII-B-5(6) of the St. Joseph County Police Merit Board Rules and Regulations; (2) 'while on patrol duty in 1976 he failed to enforce the motor vehicle speed limit laws. He stated to a superior officer that his off-duty employment as a truck driver required him to exceed the speed limit and that he could not enforce speed laws that he himself violated', in violation of Rules IX.26 and XII-B-5(6) and XV-A of the St. Joseph County Police Merit Board rules and regulations; (3) 'while on patrol duty during 1976 he failed to promptly inform a superior officer that the presence of a superior officer was not required at an accident scene. At the time the superior officer was on route to the scene as a backup unit and proceeding as an emergency vehicle with lights on and siren on, and had requested to be called off promptly. Officer Hardesty's conduct needlessly put at risk lives and property', in violation of Section IX.26 and XII-B-5(6) and XII-B-5(9) of the St. Joseph County Police Merit Board Rules and Regulations; (4) 'while on patrol duty in 1976 he initially refused to respond to a radio call to provide escort for an emergency ambulance from the Marshall County Line to South Bend. He informed the radio operator that the tires on his patrol car were bald and unsafe. When the orders were repeated, he responded to the call and provided escort. When inspected the next day, the tires were found to be in a safe condition', in violation of Section IX.26 and XII-B-5(6) and XII-B-5(9) of the St. Joseph County Police Merit Board Rules and Regulations; (5) On several occasions in 1975 and 1976 as a part of his patrol duties he refused to comply with the requests and orders of the Records Department that he properly classify certain crime reports. This resulted in improper classification of crimes for reporting purposes, in violation of Sections IX-26 and XII-B-5(6) of the St. Joseph County Police Merit Board Rules and Regulations; (6) 'while on patrol duty in May, 1976, he refused to obey the lawful orders of a detective sergeant at the scene of an alleged kidnapping, a felony crime. He was directed to interview the complainant in his squad car away from the other parties and he flatly refused' in violation of Sections IX-26 and XII-B-5(6) of the St. Joseph County Police Merit Board Rules and Regulations; (7) 'while on jail security duty during 1977, he violated the civil rights of prisoners by refusing their phone call privileges on several occasions', in violation of Sections IX-12 of the St. Joseph County Police Merit Board Rules and Regulations.

"George Hardesty appeared in person throughout these proceedings and at all times therein was represented by counsel of Carl Leibowitz and Bruce Stewart; Sheriff Dean Bolerjack appearing in person and by his counsel, William H. Albright and Myron J. Hack.

"During the course of these proceedings the charge numbered (7), concerning jail security duty, was dismissed, with prejudice.

"The board unanimously now finds that, from the evidence and testimony concluding August 2, 1977, said George Hardesty did commit these violations set out in charges numbered 1, 2, 3, 4, 5, and 6, aforesaid, filed against him by Dean Bolerjack, Sheriff of St. Joseph County, Indiana, and did thereby violate the said rules and regulations of the St. Joseph County Police Merit Board. The Board further finds that the said actions on the part of George Hardesty constituted a material breach of his employment contract with the St. Joseph County, Indiana, Police Department.

"The board now, by majority decision, finds that because of the aforesaid conduct the said George Hardesty should be discharged from the St. Joseph County, Indiana, Police Department.

"IT IS NOW ORDERED AND ADJUDGED BY THIS BOARD, by majority decision, that Dean Bolerjack, Sheriff of the St. Joseph County, Indiana, Police Department is hereby authorised [sic] and directed to discharge the said George Hardesty from the St. Joseph County, Indiana, police department and to forfeit all of his pay and allowances, forthwith." Record at 210 (82-84).

In essence, the Board did little more than repeat the language of the charging document in the above findings. Appellant contends that such was error.

This issue was addressed in Yunker v. Porter County Sheriff's Merit Bd. (1978), Ind.App., 382 N.E.2d 977, at 982, wherein this Court held that:

"Although IC 1971, 17-3-14-7 (Burns Code Ed.) does not contain an express requirement that the Board issue written findings, the existence of such findings is essential to preserve the limited scope of a reviewing court's inquiry. The absence of findings invites a reweighing of the evidence on review, thereby paving the way for judicial intrusion into matters committed to administrative discretion by the Legislature. See: Uhlir v. Ritz (1970), 255 Ind. 342, 264 N.E.2d 312. Thus, a sound basis exists for the rule in this state that an administrative agency has a duty to make a finding of the pertinent facts on which its decision is based, whether or not such findings are specifically required by statute." (Citations omitted.)

In Yunker the only findings made were citations to the pertinent rules and regulations. It has been held, however, that where the charging document contains extensive statements and facts regarding the alleged misconduct, that document can be read together with the entry of the Board to constitute findings which are specific enough for intelligent judicial review. Connell v. City of Logansport (1979), Ind.App., 397 N.E.2d 1058; Martincich v. City of Hammond (1981), Ind.App., 419 N.E.2d 240. Such is the situation in the case at bar.

That findings of fact by administrative agencies are necessary cannot be disputed. Without proper findings, a reviewing court is placed in a position in which it must weigh the evidence and judge the credibility of witnesses. The purpose of specific findings of fact is therefore to crystallize the agency's analysis of the evidence in order to provide this Court with an opportunity for intelligent review. If an agency's findings are sufficiently specific to allow a person of ordinary intelligence to ascertain the basis of the agency's decision, the findings meet the required degree of specificity. The findings of the Board in the present case meet this test.

This result is not a departure from Perez v. United States Steel Corp. (1981), Ind., 426 N.E.2d 29, which involved an appeal from an order of the Industrial Board. In Perez, Justice Hunter set forth the rationale for requiring specific findings as follows:

"We believe that both claimant and employer have a legal right to know the evidentiary bases upon which the ultimate finding rests. Davis, 2 Administrative Law Treatise, supra [Sec. 16.05 (1958) ], at 448. That responsibility initially lies with the administrative agency, who for that reason must enter specific findings of basic fact to support its finding of ultimate fact and conclusion of law. Parties will thereby be enabled to formulate intelligent and specific arguments on review. In turn, the reviewing court can expeditiously and effectively review the agency's determination; the integrity of that decision will be maintained by judicial review which is limited to these findings." (Citations omitted.) 426 N.E.2d at 32.

There is a crucial distinction, however, between Merit Board cases and cases which arise from the Industrial Board or the Employment Securities Division. In Merit Board cases there must be written charges sufficiently specific to inform an officer of the facts which constitute his misconduct. If the Merit Board finds an officer guilty of a charge, it necessarily finds that the facts alleged in that charge exist. Conversely, if the Board finds the officer not guilty on a charge, it must find that one or more of the facts alleged in the charge were unsubstantiated...