State ex rel. Crooke v. Lugar
| Decision Date | 29 September 1976 |
| Docket Number | No. 2--375A49,2--375A49 |
| Citation | 354 N.E.2d 755,171 Ind.App. 60 |
| Parties | , 22 Wage & Hour Cas. (BNA) 1401 STATE of Indiana on the relation of Paul F. CROOKE et al., Appellants (Plaintiffs below), v. Richard G. LUGAR, Mayor of the City of Indianapolis, et al., Appellees(Defendants below). |
| Court | Indiana Appellate Court |
Gary R. Landau, Corp. Counsel, William L. Soards, Indianapolis, for appellees.
The judgment below denied overtime pay to Indianapolis police officers for hours worked beyond 40 hours per week prior to March 22, 1970.
On September 1, 1970, the plaintiffs-appellants, acting and retired Indianapolis police officers and the Fraternal Order of Police, (hereinafter Crooke) individually and on behalf of all others similarly situated, commenced this action for mandate. They sought remuneration from the defendants-appellees (hereinafter City) for overtime allegedly worked without pay from January 1, 1958 to March 22, 1970. With the exception of testimony by Winston Churchill, former Chief of Police of Indianapolis, all evidence was before the court through stipulation.
Administration of municipal police force matters has been delegated to local governments by the Indiana General Assembly. See Ind.Ann.Stat. 18--1--11--1 et seq. (Burns Code Ed.1974). 18--1--11--2 provides that '(t)he annual pay of all policemen . . . shall be fixed by ordinance of the common council . . ..' The Indianapolis City Council accordingly established a pay scale on an annual basis for the members of its police department.
Restrictions on the exercise of authority over police by cities are found in Ind.Ann.Stat. 19--1--1--1 et seq. (Burns Code Ed. 1974), including a limitation upon the maximum work week in 19--1--16--1 as follows:
'Police--Work time--Exceptions--Court appearances--No member of the police department or police force of any city in the State of Indiana having a regularly organized and paid police department or police force, shall be required, except in case of public emergency as determined by the mayor, to work in excess of six (6) days of eight (8) hours each in any one (1) week, or not more than an average of forty-eight (48) hours per week in any one (1) calendar year: Provided, however, That this chapter (19--1--16--1) shall not apply to the chief of police, chief of detectives, superintendent of the police department or matrons of any such departments.'
This statutory provision was passed in 1947.
Pursuant to its authority to regulate the police department, the Indianapolis City Council enacted General Ordinance #113 (§ 3--1101 of the Municipal Code), effective January 18, 1958. That Ordinance reads in pertinent part:
Despite this ordinance, the regular average work week for police officers from January 1, 1958 to March 22, 1970 was 42 hours per week, scheduled on the basis of a 28 day monthly slate with an individual working 21 days on and 7 days off, each working day being 8 hours.
Overtime was paid only for work in excess of 48 hours per week. In the years 1966, 1967, and 1968, the compensation for overtime was determined by dividing the officer's annual salary by 2,184 hours, that figure being based on a 42-hour week. From 1969 to the present, the overtime figure has been calculated by dividing the officer's annual salary by 2,080 hours, based on a 40-hour week.
In 1966, the City Council enacted G.O. #150 (§ 3--1102 of the Municipal Code), effective November 22, 1966, which reads as follows:
'Section 1. There has been reported by the Chief of Police of the City of Indianapolis to the Board of Public Safety of said City that there exists a shortage of personnel and that there is need for added personnel from time to time to enforce the laws of the State of Indiana and the City of Indianapolis and that the public welfare and safety could be promoted by additional manpower. That the existing statutes of the State of Indiana authorize a stipulated work week and the City cannot enforce additional services from the members of its Police Department unless they voluntarily choose to serve over and beyond the statutory time limit or unless an emergency exists.
Section 2. It appearing from information furnished to the City Controller and the Board of Public Safety that a number of the personnel of the Indianapolis Police Department would voluntarily choose to serve additional hours over and beyond the statutory requirement for their services as police officers if proper compensation and remuneration were to match and be available for such services.
Section 3. The City Controller, The Board of Public Safety and the Chief of Police by virtue of the foregoing facts are hereby expressly authorized to accept the voluntary services of all police personnel who are regular members of the Indianapolis Police Department to serve in the field beyond the statutory hours required of them and also to accept the services of all personnel of the Police Department in the data processing communication function of the Indianapolis Police Department and such overtime employment shall be strictly limited to these three purposes. The pay for such overtime shall match the regular wage schedule of such personnel and shall amount to the same hourly basis as they are paid during their regular services in said Department.
Section 4. The funds to pay for the services of such voluntarily rendered overtime services by members of the Indianapolis Police Department shall be paid out of the unused balances in Fund 11, Salaries and Wages, Services Personal, Indianapolis Police Department, a Division of the Department of Public Safety of the City of Indianapolis and should the budgeted monies in said Fund expire or be reduced to the point where no such funds remain, then such overtime shall cease and the Chief of Police shall order no further overtime services if monies in Fund 11 be not available for such purposes.
Section 5. The City Controller shall maintain a running record of the balance remaining in said Fund 11 and shall advise the Chief of Police at any time of the nonavailability of additional funds for overtime purposes, and upon such notification by the City Controller to the Chief of Police, overtime services in any year where available funds become lacking, such overtime shall automatically cease. This ordinance requires no additional appropriation but merely the use of existing funds already appropriated and available and the Clerk is accordingly advised that the procedure for additional appropriation shall not be followed pertaining to this ordinance.
Section 6. The Chief of the Indianapolis Police department shall ask for volunteers Section 7. This ordinance shall be in full force and effect from and after its passage, approval by the Mayor, and upon notification by the City Controller to the Chief of Police that the overtime Police employment in the field and in the data processing and communication divisions may begin.'
in his Department and shall cause to be prepared a list of available officers who are willing to work voluntarily beyond the regular forty-two (42) hour work week and shall as near evenly as possible award overtime police employment (a) in the field, and (b) in the Data Processing and Communication Division to available rank and file members of his Department.
The ambiguity and inconsistency of these two ordinances have generated the dispute in this appeal. Winston Churchill, Chief of Police from February 1968 to April 1974, the only witness called, testified that at the beginning of his administration the regular work week was 42 hours. He knew that the 1958 ordinance established a 40-hour week, but did not implement it, since switching to a 40-hour week would have meant a manpower loss of more than 100,000 hours per year.
In March of 1970 Michael T. Sergi, President of the Fraternal Order of Police, and his attorney met with Churchill to tell him they planned to file suit regarding the 42-hour work week. Churchill subsequently had meetings with the Director of Public Safety and the City corporation counsel. They determined that it would be necessary to change to a standard 40-hour week. This was done March 22, 1970, earmarking unused salary monies from Fund 11 (a budgetary item) to pay for overtime in excess of forty hours. The plan is still in effect. Churchill further testified that the Council had done nothing to change the 1970 policy determination to pay overtime for work over 40 hours per week, and that the Council did in fact help by partially funding the overtime.
Crooke's and City's arguments revolve around their conflicting interpretations of the 1958 and the 1966 ordinances. Crooke maintains that the 1958 ordinance mandates a 40-hour week, and implicitly promises payment for hours worked over 40 hours. The enactment in 1966 specifically authorized such overtime payments. City, on the other hand, argues that the 1958 ordinance was merely an attempt to regulate the hours worked by police officers and it in no way authorized the payment of overtime; that the 1966 ordinance did not authorize overtime in this situation; and that Ind.Ann.Stat. 19--1--16--1, supra establishes a 48-hour work week for police officers, thus preempting and rendering void the 1958 and 1966 ordinances insofar as they might be construed to provide for overtime pay for less than 48 work hours.
We are confronted with two issues on review:
(1) Whether...
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