Morris v. City of Kokomo

• Decision Date: 19 October 1978
• Docket Number: No. 2-976A345,2-976A345
• Citation: 381 N.E.2d 510,178 Ind.App. 56
• Parties: Robert J. MORRIS and John A. Meeks, Appellants (Plaintiffs below), v. CITY OF KOKOMO, John Daly, in his official capacity as member of the Board of Works of the City of Kokomo and as a private Individual, Earl Hemmeger, in his official capacity as member of the Board of Works of the City of Kokomo and as a private Individual, Kenneth Andrews, in his official capacity as member of the Board of Works of the City of Kokomo and as a private Individual, and Robert E. Donoghue, as Chief of the Kokomo Fire Department and as a private Individual, Appellees (Defendants below).
• Court: Indiana Appellate Court

Page 510

381 N.E.2d 510

178 Ind.App. 56

Robert J. MORRIS and John A. Meeks, Appellants (Plaintiffs below), v. CITY OF KOKOMO, John Daly, in his official capacity as

member of the Board of Works of the City of Kokomo and as a

private Individual, Earl Hemmeger, in his official capacity

as member of the Board of Works of the City of Kokomo and as

a private Individual, Kenneth Andrews, in his official

capacity as member of the Board of Works of the City of

Kokomo and as a private Individual, and Robert E. Donoghue,

as Chief of the Kokomo Fire Department and as a private

Individual, Appellees (Defendants below).

No. 2-976A345.

Court of Appeals of Indiana, Second District.

Oct. 19, 1978.

John R. Gambs and Robert L. Bauman, Heide, Gambs and Mucker, Lafayette, for appellants.

Kenneth L. Andrews, Fred G. Osborn, Ralph L. Helms, Kokomo, for appellees.

SULLIVAN, Judge.

On November 11, 1975, Assistant Fire Chief Robert A. Morris and District Fire Chief John A. Meeks were demoted to the rank of private with commensurate reductions in pay and work responsibilities. Various means were employed in an attempt to regain their former positions, culminating with a complaint for declaratory and injunctive relief and for damages. The complaint was dismissed for failure to state a claim upon which relief could be granted Ind. Rules of Procedure, Trial Rule 12(B)(6), and plaintiffs appeal.

In reviewing the dismissal of a complaint pursuant to TR. 12(B)(6) the facts alleged in the complaint must be taken as true, Wilson v. Review Bd. of Ind. Employment Security Div. (1st Dist. 1977), Ind.App., 369 N.E.2d 675, 680, and only where it appears that under no set of facts could plaintiffs recover is dismissal of the complaint appropriate. Roberts v. State (2d Dist. 1974), 159 Ind.App. 456, 307 N.E.2d 501, 503.

The complaint alleges that Morris was informed by Fire Chief Robert Donoghue that the demotion was by order of the Mayor and that it was "political." Meeks, however, was never informed of the demotion. Rather, he was notified of his "transfer" to a different work station. When he reported to the new assignment, he found that the duties and pay were those of a private. Neither Meeks nor Morris has received any written notice of their demotions or reasons therefor, except Donoghue's statement that "you know how politics are."

Plaintiffs attempted to invoke the grievance procedure contained in their collective labor agreement with the city, but were unsuccessful. The city refused to accept the grievance and, therefore, plaintiffs initiated this lawsuit.

The complaint is in four counts, all of which were dismissed by the trial court pursuant to TR. 12(B)(6). For the reasons stated below, the trial court order is affirmed in part and reversed in part and remanded for further proceedings.

COUNT I.

Plaintiffs first allege violation of their statutory rights as defined by I.C. 18-1-11-3 (Burns Code Ed. 1974). ¹ This statute provided:

"Every member of the fire and police forces, including police radio operators and police signal and fire alarm operators, appointed by the mayor, the commissioners of public safety or the board of metropolitan police commissioners, shall hold office until they are removed by said board. They may be removed for any cause other than politics, after written notice is served upon such member in person or by copy left at his last and usual place of residence notifying him or her of the time and place of hearing, and after an opportunity for a hearing is given, if demanded, and the written reasons for such removal shall be entered upon the records of such board. On the conviction in any court of a member of the said fire or police force, including police radio operators and police signal and fire alarm operators, of any criminal offense, or upon 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 . . . ."

By its terms, the statute applied only to removal from office and, therefore was held inapplicable to adverse job action short of discharge. Jenkins v. Hatcher (3d Dist. 1975), Ind.App., 322 N.E.2d 117 (transfer denied). Thus, the statute provided no procedural protection to a fireman or policeman who was simply reduced in rank.

Plaintiffs argue that Jenkins was incorrectly decided and urge this court to adopt a much more liberal construction of the statute. We are not unmindful of plaintiffs' dilemma, as pointed out by Judge Staton in dissent to the majority opinion in Jenkins. However, we are persuaded by the Jenkins majority that application of the notice and hearing portions of the statute to anything other than discharge from employment would be tantamount to legislation by judicial fiat, a practice in which we decline to engage.

The trial court correctly sustained the City's motion to dismiss Count I of plaintiffs' complaint.

COUNT II.

Plaintiffs next allege that the City's failure to provide written notice and reasons for their demotions and failure to afford a hearing upon demand denied them due process of law, as guaranteed by the Fourteenth Amendment.

This claim is entitled to consideration only if the demotions deprived plaintiffs of "property" or "liberty." Board of Regents v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548.

Property Interest

"Property interests . . . are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law rules or understandings that secure benefits and that support claims of entitlement to those benefits." Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709.

Thus, a property interest can be created by statute, ordinance or by contract. Bishop v. Wood (1976), 426 U.S. 341, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684. In the case before us, the alleged property interest is said to arise from the collective labor agreement and/or from the policies and practices within the Kokomo Fire Department. ²

Policies or practices of an institution may give rise to a "property interest" if there are "rules or mutually explicit understandings that support (a) claim of entitlement to a (particular) benefit." Perry v. Sindermann (1972), 408 U.S. 593, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570. But the sufficiency of the claim of entitlement must be measured by state law, Bishop v. Wood, supra, 426 U.S. at 601, 96 S.Ct. at 2077, for only those interests "initially recognized and protected by state law" are entitled to constitutional protection under the Due Process Clause. Paul v. Davis (1976), 424 U.S. 693, 96 S.Ct. 1155, 1165, 47 L.Ed.2d 405.

Thus, state law must affirmatively create an expectation that a particular employment relationship will continue unless and until certain defined events occur in order for the interest to be cognizable under the Due Process Clause. Confederation of Police v. City of Chicago (7th Cir. 1977), 547 F.2d 375; Stevens v. Joint School Dist. No. 1 (W.D.Wis.1977), 429 F.Supp. 477. But see Danno v. Peterson (N.D.Ill.1976), 421 F.Supp. 950.

We are directed to no Indiana law which affirmatively creates an enforceable expectation of tenure in rank. Thus, plaintiffs have failed to establish a property interest in their rank sufficient to invoke the protection of the Due Process Clause of the Fourteenth Amendment. See Moore v. Otero (5th Cir. 1977), 557 F.2d 435.

The provision of the collective labor agreement on which plaintiffs rely to establish a property interest states:

ARTICLE XX

"Should any employee or group of employees feel aggrieved, concerning his or their wages, hours, or condition of employment; which wages, hours and conditions are controlled by this contract, regulations or policy which is not in conflict with this contract, or concerning any matter or condition arising out of employee employer relationship including any claim of unjust discrimination and any matter or condition affecting his or their health and safety, adjustment shall be sought as follows:

A. It shall first be the responsibility of the employee or group of employees to seek relief from their immediate superior in charge of his or their work position.

B. If such grievance is not resolved to the satisfaction of the employee or group of employees the problem shall be placed in writing by the individual or group and together with an assigned steward by the bargaining agent, present it to the officer in charge of his or their platoon.

C. If grievance is still not resolved after a period of seven (7) days, the written grievance shall be presented to the Chief of the Fire Department for settlement.

D. If the agrieved (sic) still has found no satisfaction after seven (7) days, the written grievance shall be presented to the City's Board of Public Works for settlement.

E. If further consideration of the grievance is necessary, after fourteen (14) days the matter may be presented by the method of arbitration as described in City Ordinance 4150.

F. Nothing contained herein shall prevent an employee from presenting his grievance and representing himself."

Plaintiffs offer no rationale for their position, other than to state that the above-quoted provision would be an "absurd nullity" if it did not contemplate reduction in rank as a proper grievance. Such reasoning thus leads plaintiffs to conclude that the "grievance procedure constitutes a tenure in rank."

We fail to perceive the logic of plaintiffs' argument. The issue is whether this provision confers a contractual...