Sheridan v. Town of Merrillville
| Citation | 428 N.E.2d 268 |
| Decision Date | 30 November 1981 |
| Docket Number | No. 3-780A206,3-780A206 |
| Parties | Lester E. SHERIDAN, Plaintiff-Appellant, v. TOWN OF MERRILLVILLE, Indiana, Defendant-Appellee. |
| Court | Court of Appeals of Indiana |
Milan D. Tesanovich, Willis & Tesanovich, Portage, for plaintiff-appellant.
Gerald K. Hrebec, Fred M. Cuppy, George W. Carberry, Thomas, Burke, Dyerly & Cuppy, Merrillville, for defendant-appellee.
Upon his complaint for mandate, restraining order without notice and reinstatement We affirm.
plaintiff-appellant Lester E. Sheridan (Sheridan) appeals from a judgment upon a bench trial in the Newton Circuit Court dismissing Sheridan's complaint pursuant to Ind. Rules of Procedure, Trial Rule 12(B)(6), for failure to state a claim upon which relief can be granted.
Sheridan was appointed to the position of Chief of Police of the Merrillville, Indiana Police Department on January 10, 1973, by the Board of Metropolitan Police Commissioners of the Town of Merrillville (Commissioners). Subsequently, the Board of Trustees of the Town of Merrillville (Town Board) approved Sheridan's appointment as Chief of Police.
On December 13, 1979, the Commissioners removed Sheridan as Chief of Police and reinstated him to his former rank and position of Captain while his salary remained unchanged. Then, on December 27, 1979, the Town Board unanimously approved the appointment of E. Donald Markle as acting Chief of Police. Following a trial to the court and in its amended order, the trial court concluded as follows:
"The Court finds that the plaintiff's complaint fails to state a claim upon which relief can be granted. The power to remove the Police Chief is in the Metropolitan Board of Police Commissioners and the statutory due process provisions do not apply to replacement of a Police Chief. Furthermore, there is no statutory right to retain the position of Chief of Police.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Plaintiff's complaint be dismissed pursuant to Trial Rule 12(B)(6).
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff's Motion for Summary Judgment be denied."
Sheridan presents four arguments granting him a right to a continued tenure as police chief which we restate as follows:
I. The Chief of Police is exempt from discipline or removal by the Board of Metropolitan Police Commissioners pursuant to Ind.Code 18-1-11-3 for any reason, and the action of the Police Commissioners violates his rights;
II. A Police Chief must be given notice and hearing for cause before he can be removed as chief pursuant to Ind.Code 19-1-25-2, and such requirement grants him a property right in the office of Chief of Police.
III. The requirement that his appointment as chief be approved by the Town Board vests in the Town Board final authority to appoint the chief and the Town Board, conversely, has the sole power to remove him, with or without cause.
IV. Town ordinances and police department regulations provide that a Chief of Police can only be removed for cause, which creates a property right protected by the due process clause of the Fourteenth Amendment of the Constitution of the United States.
All of said arguments are interrelated in Sheridan's brief, and, therefore, we will discuss them together.
The case comes to us upon the contention by Sheridan that the trial court erred in concluding that he failed to state a claim upon which relief can be granted. In reviewing a dismissal of a complaint, the Court of Appeals must determine whether, in a light most favorable to plaintiff and with every intendment regarded in his favor, the complaint is sufficient to constitute any valid claims. Morris v. City of Kokomo, (1978) Ind.App., 381 N.E.2d 510; Pruden v. Trabits, (1977) Ind.App., 370 N.E.2d 959.
Town of Speedway v. Harris, (1976) 169 Ind.App. 100, 346 N.E.2d 646, and
its progeny, establish that where a statute or ordinance affirmatively creates an expectation that a particular employment relationship will continue unless and until certain defined events occur, such interest is a property right which is protected by the due process clause of the Fourteenth Amendment to the Constitution of the United States. Such interest and claim of entitlement must be more than an abstract desire or unilateral expectation; the claimant must have a legitimate claim of entitlement.
Sheridan bases his claim of entitlement to continued employment as Police Chief upon Ind.Code 19-1-25-1 through Ind.Code 19-1-25-4, and certain ordinances enacted by the Town Board implementing the statutes. Under those statutes, the Town of Merrillville created a Board of Metropolitan Police Commissioners to operate the police department. Ind.Code 19-1-25-2 establishes the powers of that Board as follows:
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