Indiana Alcoholic Beverage Commission v. Gault

• Decision Date: 16 June 1980
• Docket Number: No. 2-778A230,2-778A230
• Citation: 405 N.E.2d 585
• Parties: The INDIANA ALCOHOLIC BEVERAGE COMMISSION et al., Appellants (Defendants Below), v. Louis J. GAULT, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 585

405 N.E.2d 585

The INDIANA ALCOHOLIC BEVERAGE COMMISSION et al., Appellants (Defendants Below), v. Louis J. GAULT, Appellee (Plaintiff Below).

No. 2-778A230.

Court of Appeals of Indiana, Second District.

June 16, 1980.

Theo. L. Sendak, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellants.

Richard Kammen, McClure, McClure & Kammen, Indianapolis, for appellee.

BUCHANAN, Chief Judge.

STATEMENT OF THE CASE

Defendants-appellants, Indiana Alcoholic Beverage Commission, et al., (Commission) appeal the decision of the Clinton Circuit Court reinstating plaintiff-appellee Louis J. Gault (Gault) to the rank of Captain after he had previously been demoted to Officer.

We reverse.

FACTS

In a trial to the court the following findings of fact, conclusions of law, and judgment were entered:

A. Louis Gault is a member of the Indiana State Excise Police with almost twenty years of service in said Department.

B. Gault was promoted to the rank of Captain in the Indiana State Excise Police and held said rank until 1976.

C. In 1975 the Indiana State Excise Police, the Indiana State Alcoholic Beverage Commission and the Indiana State Police conducted an investigation of the Indiana State Excise Police.

D. As a result of this investigation Gault received a ten (10) day suspension without pay and loss of his merit raise in April of 1975. The order of the Indiana State Alcoholic Beverage Commission suspending Gault in April of 1975, specifically provided that Gault was to retain his present pay grade and step pending successful completion of merit procedures to be implemented at an unknown date in the future.

E. No other punishment was given Gault at that time. In an attempt to avoid public disclosure of this fact Gault was given an officer's badge, however, Gault's pay and his duties remained essentially the same as prior to this punishment.

F. In October of 1975 Gault was indicted by the Marion County Grand Jury. Gault was immediately suspended by the Indiana Alcoholic Beverage Commission pending resolution of the allegations in the indictment. The indictment was dismissed in March of 1976 and Gault was recalled to service by the Indiana Alcoholic Beverage Commission.

G. During the period of Gault's suspension pending resolution of the indictment the Indiana State Alcoholic Beverage Commission and the Indiana State Excise Police attempted to implement what has been referred to as a merit policy. This merit policy has never been fully implemented and as testified to, is nothing more than a "pilot program" which the Alcoholic Beverage Commission and the Indiana State Excise Police feel free to deviate from "for cause".

H. While an Indiana State Excise Police Merit Board has been created and purports to function, the Court finds that in many respects said Merit Board has not complied with nor made any bona fide effort to comply with the requirements of its initial charter including record keeping, attendance of all members of the Merit Board meetings and publication of rules and regulations.

I. Upon his return to service in the Indiana State Excise Police, Gault, without cause, without hearing, in violation of the then existing rules and regulations of the Indiana State Excise Police was demoted to the rank of officer. His pay and duties were reduced to those of an officer. No cause for said demotion has ever been shown. No cause for said demotion was ever demonstrated to exist in March, 1976. Said demotion was not in accordance with any of the then existing merit procedures.

J. In April of 1976 Gault was accorded an opportunity by the Indiana State Excise Police Merit Board for promotion from officer to sergent (sic). Said opportunity for promotion consisted in part of an appearance before the Indiana State Excise Police Merit Board. A tape of said appearance reveals that even then there was some doubt as to Gault's rank. This tape recording reveals also that the examination was quite prefunctory (sic).

Additionally, the conversation in said Merit Board meeting cast considerable doubt on Gault's suitability for demotion. Every member of the Merit Board during the questioning took time to praise Gault for his past services.

K. In May of 1976, Gault was reindicted by the Marion County Grand Jury. Once again Gault was suspended without pay by the Indiana State Excise Police pending resolution of the allegations contained in the indictment. In December of 1976 Gault was acquitted of said charges when the State of Indiana elected to dismiss said indictment and the charges against Gault after the swearing of a jury.

L. Since March of 1976 Gault has been held at the rank of offficer (sic) and in view of his illegal demotion he has lost certain pension rights.

M. Gault is entitled to reinstatement at the rank of Captain. He is also entitled to reinstatement at the appropriate pay, grade and step and all pension N. This litigation has transpired for over one and one-half years. During the course of said litigation the plaintiff moved for summary judgment. At the request of the plaintiff a hearing on said Motion for Summary Judgment was held. During the course of said hearing the attorney for the defendants who also was trial counsel, requested summary judgment in favor of his clients. However, not until the trial of this cause, at any time, either in the pleadings or in said hearing, have the defendants asserted the claim that Gault has not pursued his administrative remedies. To the extent that the defendants attempted to present evidence that Gault has not pursued said remedies, they have not sustained their burden of proof.

rights. In view of an agreement entered into between the plaintiff and the defendants no back pay is appropriate. However, the defendant is entitled to all pension rights which would exist had said demotion not occurred.

The Court draws the following conclusions of law:

1. Gault's demotion occurred in March of 1976. There was no cause for said demotion and it was not effected in accordance with the rules and regulations of the Indiana State Excise Police. Further, said demotion was not effected in accordance with the rules and regulations of the purported Indiana State Excise Police Merit Board or the Indiana State Excise Police Merit Police. No cause for said demotion exists nor was any attempt to demonstrate that cause existed made in 1976.

2. Said demotion was illegal and Gault is entitled to reinstatement at the rank of Captain in the Indiana State Excise Police with appropriate pay, grade and step and pension rights.

3. Any claims that Gault did not adequately pursue his administrative remedies have been waived by the defendants.

4. The parties having entered into an agreement with respect to back pay, the Court is not authorized to make an award of back pay. However, Gault is clearly entitled to all pension rights to which he would have been entitled had he not been illegally demoted.

IT IS THEREFORE ORDERED ADJUDGED AND DECREED that Louis J. Gault should be reinstated to the rank of Captain within the Indiana State Excise Police. He should be paid at the appropriate rate of pay including grade and pay step commencing December 2, 1977. Gault should be accorded such pension rights by the defendants as he would have been entitled had he not been demoted. The defendants are hereby ordered to take such steps as are necessary to implement the Court's ruling. Stay of this order at the request of the defendants is effected pending determination of appeal decisions.

ISSUES

Because we reverse we will address only the controlling issue:

Did the Indiana Alcoholic Beverage Commission have the authority to demote Gault without cause and without affording him any other procedural safeguards?

DECISION

PARTIES' CONTENTIONS The Commission argues that it acted pursuant to statute and regulation in demoting Gault from Captain to Officer and that the trial court erred in ruling otherwise.

Gault responds that the trial court did not err in finding that the procedure used to effect his demotion was improper and that he was entitled to reinstatement as Captain.

CONCLUSION The trial court erred in finding that Gault had been improperly demoted and in ordering his reinstatement as Captain.

The statute governing the authority of the Commission as to Excise Police is Ind.Code 7.1-2-2-12:

The (Indiana Alcoholic Beverage) commission shall have the power to employ, and remove at will, all necessary clerks stenographers, bookkeepers, auditors, accountants, assistants of any nature, enforcement officers, and other employees, and to fix their duties, authorities, and, with proper approval, their compensation. (emphasis added).

The statute is clear and unambiguous. It is a model of clarity. There is no need for construction. Ott v. Johnson (1974), 262 Ind. 548, 319 N.E.2d 622; Indiana State Highway Commission v. White (1973), 259 Ind. 690, 291 N.E.2d 550. The Commission can employ "and remove at will" and has complete discretion in fixing the duties of the enforcement officers.

It is well established in Indiana that if one's employment is at the will of a government agency, that person has no property interest in employment at a particular rank. State ex rel. Indiana State Employees' Association, Inc. v. Boehning (1979), Ind.App., 396 N.E.2d 422; Morris v. City of Kokomo (1978), Ind.App., 381 N.E.2d 510; State ex rel. Warzyniak v. Grenchik (1978), Ind.App., 379 N.E.2d 997; Jenkins v. Hatcher (1975), 163 Ind.App. 95, 322 N.E.2d 117. An employee at will is not entitled to the procedural protections (hearing, determination of cause, etc.) attached to a property interest, Gansert v. Meeks (1979), Ind.App., 384 N.E.2d 1140; Gardner v. Talley (1978), Ind.App., 373 N.E.2d 175; Town of Speedway v. Harris (1976), Ind.App., 346 N.E.2d 646.

Because the power to demote an excise police officer is within the discretion of the Commission, there is no requirement to...