May v. Department of Natural Resources, State of Ind., 29A02-9001-CV-62
| Decision Date | 23 January 1991 |
| Docket Number | No. 29A02-9001-CV-62,29A02-9001-CV-62 |
| Parties | Byron MAY, Appellant (Plaintiff), v. DEPARTMENT OF NATURAL RESOURCES, STATE OF INDIANA, Appellees (Defendants). |
| Court | Indiana Appellate Court |
Frank B. Harshey, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Brenda Franklin Rodeheffer, Deputy Atty. Gen., Office of Attorney General, Indianapolis, for appellees.
Plaintiff-appellant Byron May (May) appeals from his demotion by the Indiana Department of Natural Resources (DNR), claiming the DNR failed to promulgate rules and regulations in accordance with statute, that the DNR failed to file a statement of reasons with the State Personnel Department, and that the evidence was insufficient to support his demotion.
We affirm.
The facts most favorable to the trial court's judgment reveal that May was employed by DNR as a Conservation Engineer Supervisor IV. May was the chief of the Planning Section of the Engineering Division of DNR and was second in command of the Engineering Division under Carl North (North). Paul Greenwalt (Greenwalt) was a Deputy Director of DNR and was North's immediate superior.
In October, 1986, Greenwalt decided to remove May from his managerial position, and demote him to the position of Conservation In a letter dated November 3, 1986, Greenwalt outlined the reasons for his decision to demote May. The letter provided, in pertinent part:
Engineer III. Greenwalt felt that May was inadequate as a manager, but because May was a good engineer, Greenwalt wanted to keep May in the DNR.
"In your position as head of the planning and design section, it was your responsibility to effectively provide leadership, set a good example and demonstrate sound management practices. Unfortunately, you failed to do this.
As explained previously, I was very concerned about several aspects of your performance, including the important role as second-in-command of the Division of Engineering. In this role, you were to direct and manage the division in Carl's absence and provide, at all times, sound leadership for the many employees within the Division.
Your lack of a sense of urgency about proposed, planned and on-going engineering projects reflected unacceptable behavior. In addition, under your own initiative, you developed an adversary posture with other employees of the DNR and even with outside engineering firms, concerning engineering projects. As I have explained on numerous occasions, cooperation and a helpful attitude with other sections of state government, and the public, is paramount to the success of an engineering project.
On more than one occasion, you missed deadlines for submitting material to the division director or to me. Included in this unacceptable practice was the recent request by me for a capital construction priority listing. This item, prepared by you, was several months late in reaching my desk.
You were counseled on several occasions about unacceptable job performance. You had ample time and opportunity to improve job performance. Unfortunately, you chose not to change your work performance and this is why divisional duties and responsibilities were reassigned."
After being informed Greenwalt was considering demoting him, May was given the opportunity to discuss the action with the Director of DNR before the decision was finalized. The director decided to follow Greenwalt's recommendation and demoted May effective November 16, 1986. May appealed his demotion to an administrative law judge.
The administrative law judge decided that the DNR had failed to promulgate rules and regulations concerning the employment of professional engineers, contrary to the provisions of Ind.Code 4-15-3-3 (1988), and that May's demotion was therefore improper. The administrative law judge also determined that the evidence was insufficient to establish May's performance warranted demotion. The administrative law judge focused on the evaluations May had received in the years prior to his demotion and concluded DNR had failed to adequately advise May that his performance was deficient.
The administrative law judge recommended that May's demotion be vacated and that he be reinstated. The DNR filed objections to the administrative law judge's decision, and the Director reviewed the administrative law judge's findings of facts and conclusions of law. The Director upheld May's demotion and issued his own findings and conclusions.
In support of his decision to uphold May's demotion, the Director made the following determinations:
"36. The reasons referenced in Finding 33 are supported by the evidence. Illustrative of this evidenciary [sic] support is the following:
(A) The Deputy Director spoke with May and Carl North in the doorway to May's office in the fall of 1985 and told them changes were needed to the management of the Division. Neither May nor Carl North undertook an initiative to respond to this informal discussion.
(B) At the insistence of the Deputy Director, a meeting was conducted in (C) John Fleck, Director of Public Works, spoke with the Division, including May, concerning problems which had arisen because changes were made without communicating the changes through a designer.
January 1986 with the staff of the Division (including May) to discuss performance difficulties. The Director and the Deputy Director "talked for some time then about a sence [sic] of urgency, about a service attitude" that the Deputy Director wanted changed, but May was unresponsive.
(D) One of May's administrative responsibilities was to develop a priority listing for DNR projects as soon as practicable after budgetary decisions were made by the General Assembly, but he was chronically delinquent in performing this responsibility.
(E) May failed to function in concert with the landholding divisions of the DNR and often projected an attitude with respect to those divisions which was adversarial rather than service-orientated.
(F) May either could not or would not view the broader engineering planning and design needs of the DNR and frequently became immersed in minute details. He would lose sight of the overall program within the DNR and would fail to deal with large issues.
(G) Failures by May to establish priorities and to delegate responsibilities to his staff contributed to delays in the development and completion of major capital projects.
37. Good cause exists for demoting May and removing from him responsibilities for management, supervision and administration."
May sought judicial review of the Director's decision, and on October 31, 1989, the trial court affirmed the Director's action.
May raises three issues for our consideration, which we restate as:
1. Whether DNR was required to promulgate rules and regulations in accordance with IC 4-15-3?
2. Whether DNR complied with 31 IAC 1-10-1 by filing a statement of reasons for May's demotion?
3. Whether the evidence was sufficient to support May's demotion?
ISSUE ONE--Was DNR required to promulgate rules and regulations?
PARTIES' CONTENTIONS--May argues that DNR was required by statute to promulgate rules and regulations establishing a merit system for the professional engineers it employed, and that DNR lacked the authority to demote him because it failed to issue the required rules. DNR responds that the statute is discretionary and that it was not required to promulgate regulations.
CONCLUSION--DNR was not required to issue rules and regulations.
May's position is that IC 4-15-3-3, which creates a merit system for professional engineers employed by the State, and which has never been construed by the courts of this State, mandates the promulgation of rules and regulations necessary for the establishment of a merit system. 1 Two statutes are relevant to our discussion:
IC 4-15-3-3 provides:
(Emphasis supplied).
IC 4-15-3-5 further provides:
"The provisions of this chapter shall govern the qualification, classification, and remuneration of all registered professional engineers in the engineering service of all departments, commissions, bureaus, boards, and divisions of the state of Indiana. As soon as possible, and in any event not later than August 7, 1941, each department, commission, bureau, board, or division shall cause to be prepared the rules and regulations authorized in this chapter by it to be made.
(Emphasis supplied).
As IC 4-15-3-3 empowers the DNR to issue rules and regulations "as it may deem proper," it is reasonable to assume that the promulgation of rules and regulations is entirely within the DNR's discretion.
May points to that part of IC 4-15-3-5 which provides DNR "shall cause to be promulgated ..." as support for his contention. Generally, when the word "shall" appears in a statute, it is construed as mandatory rather than directory unless it appears clear from the context or the purpose of the statute that the legislature intended a different meaning. United Rural Elec. v. Ind. & Mich. Elec. (1990), Ind., 549 N.E.2d 1019.
The term "shall" has often been held to be the directory, e.g. when the statute fails to...
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