Indiana State Employees Association, Inc. v. Negley

• Decision Date: 24 October 1973
• Docket Number: No. IP 73-C-21.,IP 73-C-21.
• Citation: 365 F. Supp. 225
• Parties: INDIANA STATE EMPLOYEES ASSOCIATION, INC., an Indiana not-for-profit corporation, et al. v. Harold NEGLEY, Individually and as State Superintendent-elect of Public Instruction.
• Court: U.S. District Court — Southern District of Indiana

365 F. Supp. 225

INDIANA STATE EMPLOYEES ASSOCIATION, INC., an Indiana not-for-profit corporation, et al. v. Harold NEGLEY, Individually and as State Superintendent-elect of Public Instruction.

No. IP 73-C-21.

United States District Court, S. D. Indiana, Indianapolis Division.

October 24, 1973.

Ronald E. Elberger and Donald R. Anderson, of Bose, McKinney & Evans, Indianapolis, Ind., for plaintiffs.

Theodore Sendak, Atty. Gen., by Richard Johnson, Sheldon Breskow and Robert S. Spear, Deputy Attys. Gen., for defendants.

JUDGMENT AND MEMORANDUM OPINION

NOLAND, District Judge.

This cause came before the Court for trial without a jury on July 9, 1973. Plaintiffs, the Indiana State Employees Association,¹ seven former employees and one current employee of the Indiana Department of Public Instruction, have brought this action for injunction, declaratory relief, and damages for the purpose of challenging their discharge from employment with the Department, purportedly motivated or threatened on the basis of their political party affiliation. It is asserted that the discharge of these employees for such reason is or would be violative of their rights to freedom of association, equal protection, and due process as secured to them by the First and Fourteenth Amendments to the United States Constitution and by Article 1, Sections 9, 12 and 23 of the Constitution of the State of Indiana.²

The Court, after consideration of the entire record, including the testimony,³ exhibits, and memoranda of counsel, concludes that no constitutional rights of the plaintiffs herein have been infringed by their discharge from public employment with the State of Indiana.

Defendant Dr. Harold Negley, a Republican, was elected Superintendent of Public Instruction in November 1972 over the incumbent Democrat, John J. Loughlin. Continuity during the change in administration was provided by Dr. Negley's appointment as an Assistant Superintendent in January 1973. On defendant Negley's assumption of office as Superintendent on March 15, 1973, the employment of six of the individual plaintiffs was terminated.⁴ Each individual plaintiff is asserted to be either a Democrat or an Independent. None of them were within Indiana's statutory merit system, and each served at the pleasure of the Superintendent of Public Instruction.

Plaintiffs contend that Illinois State Employees Union, Council 34 v. Lewis⁵ is controlling in the present case. In Lewis, a large number of employees of the Illinois Secretary of State's office, "building employees, clerical workers, license examiners and the like,"⁶ were summarily dismissed when a Republican was appointed by the Governor to complete the unexpired term of a Democratic Secretary of State who had died in office. The discharged employees brought suit seeking reinstatement. The trial court granted defendant's motion for summary judgment in spite of ninety-four affidavits filed in opposition which all tended to indicate that plaintiffs had been discharged on the basis of their political affiliation. Five of the affiants asserted that they had been requested to change their party affiliation as a condition for continuing in their employment. On appeal, the Court reversed, holding that these five affidavits created a genuine issue of material fact and that the record therefore did "not support a factual finding that no plaintiff was dismissed for an impermissible reason or the legal conclusion that defendant was justified in prescribing active support of the Republican Party as a condition of continued public employment."⁷

Plaintiffs have drawn from Lewis the proposition that if the individual plaintiffs' positions were non-policy making ones, they cannot permissibly be discharged from public employment on the basis of their political party affiliation. Assuming initially that plaintiffs have correctly stated the test to be derived from Lewis, the facts relative to the duties of each individual plaintiff should be set out as they were developed at trial.

Plaintiffs John J. Day and C. Michael Pitts were employed until March 15, 1973 as Title I Consultants in the Federal Projects Division of the Department at annual salaries of $13,300. Their duties included: (a) processing grant applications from local educational agencies with respect to millions of dollars in federal grant funds awarded on approval of the Department under Title I of the Elementary and Secondary Education Act of 1965;⁸ (b) conducting program reviews through site visits to local educational agencies;⁹ and (c) participating in the drafting of the state plan concerning federal grants.¹⁰ Plaintiff Ross B. Norrick, age 66, was employed until March 15, 1973, as a Title III Consultant in the Federal Projects Division at an annual salary of $13,936. Though his duties pertained to Title III of the National Defense Education Act,¹¹ they were functionally the same as those performed by plaintiffs Day and Pitts with respect to Title I of the Elementary and Secondary Education Act. Defendant assigned as his reason for discharging plaintiff Norrick his belief that plaintiff Norrick was not effective as a consultant.¹² Defendant Negley testified that up to the date of the trial he had been of the opinion that plaintiff Norrick was a Republican.¹³

Plaintiffs Day, Pitts, and Norrick asserted that they were not policy-making employees.¹⁴ In support of this conclusion, plaintiffs testified that their duties were so completely governed by statutes, regulations, and guidelines that they were allowed no room for discretion. Such a conclusion is hardly credible. Plaintiffs' own exhibits indicate that they were required to exercise an informed discretion in evaluating the merits of applications for millions of dollars in grants sought by numerous and diverse local agencies. Their positions were not rendered non-policy making by the fact that many of their decisions were subject to formal approval by their superiors. That this approval was generally perfunctory in nature is suggested by defendant Negley's statement that there would have to be something markedly wrong with a consultant's recommendation before his superior would fail to follow it. Therefore, though their decisions were subject to higher review and approval, this does not mask the fact that their cumulative decisions in large part determined the policy of the Department toward, and thus the extent of Indiana's participation in, the Title I and Title III grant programs.

More pertinent to this cause is testimony of defendant Negley that under his administration consultants, in addition to the functions they performed under previous administrations, will be expected to make recommendations as to fund expenditures in specific areas and as to the allocation of available funds. Thus, while Federal Projects consultants were policy making employees under the previous administration, their policy input would appear to be even more pronounced under the current administration.

Plaintiff William E. Wallace was employed until March 15, 1973 as the Title I Coordinator in the Federal Projects Division at an annual salary of $13,900.¹⁵ Within the hierarchy of the Division, his position was functionally that of assistant to the Director. Plaintiff Wallace's duties appear to have been similar to those of the consultants discussed above, though exercised in the form of coordination and review. Defendant Negley testified that the coordinator participates in making or can make almost the entire recommendation as to the re-allocation of Title I funds between such agencies as the public schools and the Department of Corrections. It appears therefore that he too occupied a policy making position with the Department and that the policy input from that position will be emphasized under the current administration.

The defendant stated that the basis for his decision to discharge plaintiff Wallace was, among several other nonpolitical factors, his reputation for conducting his various personal businesses from his office while employed by the Department. The credibility of his testimony to this effect is bolstered by plaintiff's testimony that he had interests in an apartment rental business, an Amway Products sales business, and a gift shop, and that he used his office telephone with respect to all three of these businesses while employed with the Department.¹⁶

Plaintiff Marie (Visher) Bonvillain was employed until March 15, 1973, as the Federal Projects Coordinator for the Special Education Division of the Department at an annual salary of $13,390. In that position she served essentially as an assistant to the Director. Her duties included correlating all of the Division's projected activities, processing grant applications, drafting the Division's annual report, and providing advisory assistance to grant applicants. Under the current administration, the person holding that position is additionally required to evaluate the use of federal funds with respect to each project, to determine its effectiveness, and assist in determinations of fund utilization between various programs. Therefore, under the administration of Dr. Negley, the holder of plaintiff Bonvillain's position is required to share in the exercise of policy determination with respect to program evaluations and recommendations, allocations and reallocations of funds, and interpretations of various and voluminous rules, regulations and guidelines applicable to the Division's special education programs. It appears then that plaintiff Bonvillain occupied a policy making position previously, and that the policy making element of her successor's duties has been considerably expanded.

Plaintiff Ronald E. Drury was employed until March 15, 1973 as the State Supervisor for Adult Education at an annual salary of $13,390. His duties included approving applications for courses, arranging funding for such courses, traveling throughout the state to review plans for...