Smulski v. Conley

Decision Date28 July 1977
Docket NumberCiv. No. H 77-4.
Citation435 F. Supp. 770
PartiesDonald Lee SMULSKI, Plaintiff, v. Thomas C. CONLEY, John R. Stanish, George Sudicky, Frank J. Dupey, John R. Klapak, and City of Hammond, Defendants.
CourtU.S. District Court — Northern District of Indiana

Palmer C. Singleton, Jr., Glenn R. Patterson, Singleton, Levy & Crist, Highland, Ind., for plaintiff.

Barry D. Sherman, Sherman & Goot, John R. Stanish, Hammond, Ind., for defendants.


McNAGNY, District Judge.

This cause came before the Court on the motion of defendants, Thomas C. Conley, John R. Stanish, George Sudicky, Frank J. Dupey, John R. Klapak, and City of Hammond, for summary judgment.

In order to grant a motion for summary judgment, the Court must find that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." F.R.Civ.P. 56(c); Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). In making that determination (upon consideration of the facts in the record that appear in, inter alia, the depositions, affidavits, exhibits, and answers to interrogatories), the Court must view "`the inferences to be drawn from the underlying facts . . . in the light most favorable to the party opposing the motion.' United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)." Fitzsimmons v. Best, 528 F.2d 692, 694 (7th Cir. 1976).


Plaintiff Donald Lee Smulski was employed by the Hammond, Indiana, Police Department with the rank of Lieutenant, Uniform Bureau. On November 18, 1976, plaintiff was demoted from the rank of Lieutenant to that of Corporal by defendants. Defendants admit that plaintiff's demotion occurred summarily; that is, plaintiff was not afforded prior notice of the charges against him, and no hearing on his demotion was held.


The issue presented by defendants' motion is whether or not plaintiff had a property interest in the rank of Lieutenant which is protected by the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States.1


In Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548, (1972), the Supreme Court held that procedural due process guarantees apply only to the deprivation of protected liberty and property interests within the meaning of the Fourteenth Amendment. A protected property interest was explained in the following way:

"To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims." 408 U.S. at 577, 92 S.Ct. at 2709, 33 L.Ed.2d at 561.

The concept of property includes contracts guaranteeing continued employment absent "sufficient cause" for altering that employment relationship. Roth, supra, 408 U.S. at 578, 92 S.Ct. at 2709, 33 L.Ed.2d at 561.2 The Supreme Court has stated also that ". . . the sufficiency of the claim of entitlement must be decided by reference to state law." Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684, 690 (1976). Indiana law therefore must be referred to in ruling upon defendants' motion.

Plaintiff's employment with the City of Hammond is based on a written contract of employment. Kirmse v. City of Gary, 114 Ind.App. 558, 51 N.E.2d 883 (1944). The Kirmse case also held that statutory provisions are incorporated as a matter of law into the written contract of employment between the public employee and the public employer.3 Officer Smulski's contract therefore includes the terms of both Indiana statutes as well as City of Hammond ordinances which relate to policemen.

The plaintiff contends that two provisions of the Indiana law confer upon him a "legitimate claim of entitlement" to his rank of Lieutenant. The first is the following provision of Ind. Code § 18-1-11-3 (1976):

"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."

In his brief in opposition to defendants' motion, plaintiff makes the following argument:

"The plaintiff calls the Court's attention to the words `or other breach of discipline' in the quotation set out above. The statute does not say for `any other reason.' Therefore, the statute must be construed to mean that the named authorities are limited to finding one of the specifically enumerated grounds before a police officer can be demoted or reduced in rank. Furthermore, . . . the statutory language mandates that rank is not held at the will or pleasure of the public employer. Under . . . the statute, there can be no demotion or reduction in rank except for the `sufficient causes' set out therein thus giving the plaintiff a `legitimate claim of entitlement' to rank and pay within the meaning of the Fourteenth Amendment."

In Jenkins v. Hatcher, Ind.App., 322 N.E.2d 117 (1975), a Gary, Indiana, fireman had been demoted from battalion chief to captain without notice and a hearing. Jenkins sued for reinstatement, arguing that Ind. Code § 18-1-11-3 (1976) requires that statutory procedures, viz., notice, hearing, and written reasons, be followed, in cases involving demotions as well as those involving removal. The Court of Appeals specifically held that

"The procedures outlined in IC 1971, 18-1-11-3, supra, cannot, however, be deemed applicable to Jenkins' demotion. By its relevant terms, the statute in question applies only to `removal.'" 322 N.E.2d at 119.

The court based its holding on two separate theories. First, the court cited another provision of Ind. Code § 18-1-11-3 (1976):

"Any member of such fire or police force who is dismissed from such force, as aforesaid, or is suspended therefrom for any period in excess of ten 10 days, shall have the right to appeal * * * but shall not have the right of appeal from any other decision." 322 N.E.2d at 119.

It then reasoned that that particular provision of the statute in question "indicates a legislative intent to limit applicability of the statutory hearing procedures." 322 N.E.2d at 120.

Second, "merit plan" Acts have been passed which provide specific demotion procedures for policemen and/or firemen in cities which qualify under the statutory scheme. The court interpreted the existence of these plans also to evidence an intention on the part of the legislature not to include demotions within the rubric of Ind. Code § 18-1-11-3 (1976).

On the basis of the Jenkins case, this Court now finds that Ind. Code § 18-1-11-3 (1976) does not support plaintiff's claim of legitimate entitlement to his rank of Lieutenant. The statute provides procedures to be followed in instances of removal and suspensions. It has been interpreted specifically not to include demotions within its purview.

The second provision of Indiana law relied upon by the plaintiff is Hammond Ordinance 35-10, which reads, in pertinent part, as follows:

"Policemen who have been appointed permanently to the police department may be discharged or suspended without pay, demoted or reduced in rank or fined for any of the following reasons:
(a) Suspension, demotion or reduction in rank by board of public works and safety. The board of public works and safety may suspend a policeman without pay, not to exceed thirty days or demote or reduce him in rank for the violation of the written rules and regulations adopted by the board of public works and safety or issued by the police chief."

Most of the discussion within the briefs as well as during oral argument centered around the meaning of the word "may" in the second sentence of the quoted portion of the ordinance. Defendants contend that the word "may" is used in the ordinance to indicate that reasons for discharge, suspension, or demotion set out therein are non-exclusive; that is, there may be reasons other than violations of promulgated rules and regulations for which disciplinary action may be taken. Plaintiff, argues, however, that by using discretionary rather than mandatory language, the Board of Public Works is given the option of choosing what type of disciplinary action to invoke for violations of the rules and regulations governing the conduct of police officers. In other words, if a violation of the...

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  • Boussom v. City of Elkhart
    • United States
    • U.S. District Court — Northern District of Indiana
    • July 21, 1983
    ...held that officers could not be demoted as part of a reorganization, and further stated: However, the district court in Smulski 435 F.Supp. 770, supra, found that the ordinance in question provided an exclusive list of reasons for demoting a policeman. Only these reasons constituted "suffic......
  • Biddle v. City of Fort Wayne
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    ...for it, insofar as the rights so created and defined violate no express constitutional or statutory prohibitions. See Smulski v. Conley, 435 F.Supp. 770 (N.D.Ind.1977). A city in Indiana has all the powers it needs, by statute, "for the effective operation of government as to local affairs.......
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    ...claim of entitlement to continued employment at a particular rank, absent 'sufficient cause' for demotion. Smulski v. Conley, 435 F.Supp. 770, 772 (N.D.Ind., 1977); Speedway, supra, 346 N.E.2d at 650. According to Bishop v. Wood (1976), 426 U.S. 341, 344, 96 S.Ct. 2074, 2077-78, 48 L.Ed.2d ......
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