Shettle v. Meeks, 2-283A54

• Docket Nº: No. 2-283A54
• Citation: 465 N.E.2d 1136
• Case Date: July 09, 1984
• Court: Court of Appeals of Indiana

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465 N.E.2d 1136 John T. SHETTLE, Superintendent of the Indiana State Police
and the Indiana State Police Board, Appellants (Respondents),
v.
Robert L. MEEKS, Appellee (Petitioner). No. 2-283A54. Court of Appeals of Indiana,
Second District. July 9, 1984.

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Linley E. Pearson, Atty. Gen. of Indiana, Charles N. Braun II, Deputy Atty. Gen., Indianapolis, for appellants.

John C. Ruckelshaus, Walter F. Lockhart, Ruckelshaus, Roland & O'Connor, Indianapolis, for appellee.

BUCHANAN, Chief Judge.

CASE SUMMARY

Respondents-appellants superintendent John T. Shettle (Shettle) of the Indiana State Police and the Indiana State Police Board (Board) appeal from an adverse trial court ruling reversing the Board's disciplinary action against former First Sergeant Robert L. Meeks (Meeks), claiming, inter alia, the trial court erred in holding the Board had to provide Meeks the certified transcript of his hearing without charge and in holding the Board's decision was null and void for want of a majority vote.

We reverse and remand with instructions.

FACTS

The facts most favorable to the trial court's judgment disclose that on October 24, 1980, First Sergeant Meeks (a twenty-year veteran of the Indiana State Police Department) and three other members of the State Police Department, signed off duty about midday to play golf. When inclement weather cut their game short, the players retired to the clubhouse for refreshments. Meeks consumed a sandwich and three or four blackberry brandy cocktails. Around six p.m. Meeks left the clubhouse to go home. While driving home, Meeks attempted to pass a slower moving vehicle, but, as he crossed the center line, he hit an oncoming Amish buggy, causing damage to both the buggy and Meeks's state-owned police car.

Consequently, on December 5, 1980, Superintendent Shettle of the State Police Department, (Shettle) preferred charges in writing pursuant to Ind.Code 10-1-1-6 (1976). Shettle charged Meeks with violating three departmental regulations: (1) committing a crime under Indiana law, to-wit: driving while intoxicated, (2) failing to supervise subordinate employees and personally engaging in recreational pursuits during working hours, and (3) causing negligent destruction of state property and property of another.

On January 29, 1981, Meeks appeared before Shettle to answer the charges. Shettle forbade Meeks from having counsel present at this appearance. Meeks pleaded not guilty to all charges. On February 9, 1981, Shettle found Meeks guilty of all charges. He demoted Meeks to the rank and pay of Sergeant, effective February 14, 1981, reassigned Meeks to Sergeant duties, and suspended him without pay for five days.

Meeks appealed Shettle's decision to the Board. On August 17 and 18, 1981, the Board held a hearing after which it issued findings of fact and a decision. The Board found Meeks guilty of the third charge, negligent destruction of state property, but not guilty on the other two charges. The Board was unable to reach a majority decision as to an appropriate sanction.

On October 15, 1981, Meeks filed his petition for review, seeking reversal of count three of the Board's decision in the Marion County Superior Court. Meeks claimed he was denied his statutory right to a hearing prior to his demotion because the pre-demotion appearance before Shettle was not in accordance with the hearing requirements of the Administrative Adjudication Act (hereinafter cited as the AAA). Ind.Code 4-22-1-1 to -30 (1982). Also, Meeks asserted the Board's decision upholding Shettle's finding of guilty was manifestly against the weight of the evidence and therefore arbitrary and capricious. And lastly, because of the Board's inability to arrive at an appropriate sanction, Meeks sought reinstatement with

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back pay plus interest and compensation for the five days of suspension without pay.

After a hearing, the court entered judgment for Meeks, ordering he be reinstated and reimbursed for any pay differential and loss of pay during the five days suspension, the Board and Shettle (hereinafter collectively referred to as the Board) appealed.

ISSUES

Proper disposition of this appeal requires us to address only two of the four issues raised by the Board:

1. Did the Board's "decision" lack the necessary finality to be judicially reviewable? ¹

2. Did the trial court err in ordering the Board to supply Meeks with the transcript of his Board hearing without charge?

ISSUE ONE--Did the Board's "decision" lack the necessary finality to be judicially reviewable?

Although neither party formulates an argument specifically couched in these terms, both present their differing views as to the ultimate effect of the Board's failure to arrive at a majority position with regard to the appropriate sanction, if any, for Meeks. We need additional facts to dispose of this issue adequately.

Upon finding Meeks guilty of negligent destruction of state property and property of another by a unanimous (4-0) vote, ² the Board then considered the sanctions Shettle imposed upon Meeks. Although three attempts were made, the Board was unable to reach a majority decision on sanctions. Two motions for sanctions received tied two-two votes, and the third failed for lack of a second. The net effect of the Board's action was a finding of guilty of negligent destruction of state property without a decision as to what, if any, punishment was appropriate. Nothing else in the record illuminates the matter further, although we gather from the complaint that Shettle's sanctions remained standing after the Board meeting.

On review, the trial court concluded only the Board as the ultimate authority of the agency, following a majority vote, could impose a disciplinary penalty upon Meeks, apparently relying on section 11 of the AAA which requires final agency orders to be approved by majority vote. Ind.Code 4-22-1-11 (1976) (hereinafter cited as the Final Order Section). As the Board imposed no penalty by majority vote, the court held Meeks's demotion and suspension were illegal and void; therefore Meeks was entitled to reinstatement to First Sergeant with its attendant pay differential and to the amount of pay withheld during his suspension. With this additional background we turn to the arguments raised by the parties.

PARTIES' CONTENTIONS--The Board claims its tie vote upheld Shettle's penalty, analogizing to the result of tie votes by appellate tribunals which have the effect of affirming a trial court. Even if the trial court believed a majority vote was required, the Board argues, the court should have remanded the case to the Board for reconsideration and the opportunity to reach a majority decision.

Meeks responds, because the Board failed to achieve a majority vote, no penalty was imposed; therefore his suspension and demotion were illegal and void. Moreover, Meeks argues a remand to the Board here would be futile given his intervening retirement

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from the police department which occurred while his case was before the trial court.

CONCLUSION--Because the Board failed to reach a majority determination as to the appropriate sanction, if any, for Meeks, the Board's determination was not a final order from which review could be taken to the trial court. The trial court should not have entertained Meeks's action and erred in not remanding the case to the Board.

"A primary tenet of Indiana administrative law is that there must be final administrative action before there can be judicial review thereof." St. Joseph's Hosp., Inc. v. Huntington County Dep't of Pub....