State ex rel. Indiana State Employees' Ass'n, Inc. v. Boehning, No. 2-977A369

Docket NºNo. 2-977A369
Citation182 Ind.App. 684, 396 N.E.2d 422
Case DateNovember 05, 1979

Page 422

396 N.E.2d 422
182 Ind.App. 684
STATE of Indiana ex rel. INDIANA STATE EMPLOYEES'
ASSOCIATION, INCORPORATED, an Indiana not-for-profit
corporation, and Ray B. Merritt, Ervin Schwier, Richard H.
Smart and Henry T. Starkey, Appellants (Plaintiffs Below),
v.
Richard A. BOEHNING, Chairman of the Indiana State Highway
Commission; Indiana State Highway Commission; Robert F.
Marsh, Executive Director of the Indiana State Highway
Commission; Leonard E. Lucas, District Engineer, La Porte
District, Indiana State Highway Commission; George A.
Brumbach, Chairman State Employees' Appeals Commission;
State Employees' Appeals Commission and Alan J. Fromuth,
Personnel Director, Department of Administration, Appellees
(Defendants Below).
No. 2-977A369.
Court of Appeals of Indiana, Second District.
Nov. 5, 1979.

[182 Ind.App. 685]

Page 423

Ronald E. Elberger, Indianapolis, for appellants.

Theodore L. Sendak, Atty. Gen., Victoria R. Van Duren, Deputy Atty. Gen., Indianapolis, for appellees.

BUCHANAN, Chief Judge.

CASE SUMMARY

Plaintiffs-Appellants State of Indiana ex rel. Indiana State Employees' Association, Incorporated and Ray B. Merritt, Ervin Schwier, Richard H. Smart, and Henry T. Starkey (Employees) appeal from a decision of the Marion Circuit Court denying them the right to an administrative due process hearing prior to their reclassification from salaried Engineer Assistants II to hourly laborers.

We reverse.

FACTS

The uncontradicted evidence indicates that on March 21, 1975, a memorandum 1 was issued by Appellee Leonard E. Lucas (Lucas), District [182 Ind.App. 686] Engineer of the LaPorte District, Indiana State Highway Commission, addressed to all interstate highway I-65 rest park attendants, including Employees who were classified as Engineer Assistants II, advising them that effective July 1, 1975, at their option, they could continue their employment as I-65 park attendants but with a reclassification of their positions from salary to an hourly wage with a consequent reduction in wage, accept transfer to an undetermined position elsewhere within the Rensselaer Subdistrict of the LaPorte District at an undetermined hourly wage, accept transfer to an undetermined position elsewhere in the LaPorte District at an undetermined salary classification, 2 or be terminated from employment

Page 424

with the Indiana State Highway Commission. The reason stated for the change in status was "to conform with the procedure used by the State Highway Rest Parks throughout the State . . . ."

The Employees objected vigorously to their respective demotions and reclassifications and tried to obtain hearings to redress their grievances.

Effective July 1, 1975, the Employees were reclassified from a salary to an hourly wage, resulting in the following decrease in their respective total bi-weekly earnings:

a) Plaintiff Merritt was reclassified from the salaried position of Engineer Assistant II earning $274.00 bi-weekly to the position[182 Ind.App. 687] of Laborer, earning $3.17 per hour, or $253.60 bi-weekly, a reduction of $20.40 bi-weekly.

b) Plaintiff Schwier was reclassified from the salaried position of Engineer Assistant II earning $286.00 bi-weekly to the position of Laborer, earning $3.17 per hour, or $253.00 bi-weekly, a reduction of $32.40 bi-weekly.

c) Plaintiff Smart was reclassified from the salaried position of Engineer Assistant II earning $274.00 bi-weekly to the position of Laborer, earning $3.17 per hour, or $253.60 bi-weekly, a reduction of $20.40 bi-weekly.

d) Plaintiff Starkey was reclassified from the salaried position of Engineer Assistant II earning $262.00 bi-weekly to the position of Laborer, earning $3.17 per hour, or $253.60 bi-weekly, a reduction of $8.40 bi-weekly.

Having had their status of employment involuntarily changed the Employees, with the assistance of the Indiana State Employees Association, Inc., attempted to initiate administrative complaint procedures by reducing their respective grievances to writing and presenting their administrative complaint to defendant Lucas on July 10, 1975. In addition, the Employees also submitted their respective administrative complaints to defendant Alan J. Fromuth, Personnel Director, Department of Administration, who refused to review the complaints or render a decision as to their validity.

Finally, on July 15, 1975, copies of the Employees' respective administrative complaints were personally delivered to defendant Richard A. Boehning, Chairman of the Indiana State Highway Commission. He did not respond.

At no time relevant to these proceedings has there been any grievance procedure, rules or regulations promulgated, adopted, or implemented by the Commission regarding the complaints of these Employees. The Employees were afforded no administrative review and were denied a hearing on their objections to the demotions and reclassifications.

On November 10, 1975, the Employees instituted an action in the Marion Circuit Court seeking an order to mandate the Indiana State Highway Commission to review their complaints and conduct hearings and they are appealing the Court's decision denying their requested mandate.

[182 Ind.App. 688] ISSUES

We deem the issues on appeal to be as follows:

1. Whether Indiana statutory law affords these Employees an administrative due process hearing upon reclassification and demotion.

2. Whether the constitutional right of procedural due process of the Fourteenth Amendment applies to afford these Employees an administrative hearing.

3. Whether finding No. 8 is contrary to law. 3

DECISION

ISSUE ONE Does Indiana statutory law afford an administrative due process hearing to these Employees upon reclassification and demotion?

PARTIES' CONTENTIONS The Employees contend that Indiana statutory law does provide them with the right to an administrative due process hearing.

Page 425

The State responds that the state statutes have no provisions providing for such a hearing.

CONCLUSION Indiana statutory law does not specifically afford the Employees a right to a due process administrative hearing prior to reclassification.

To grapple with this question we must examine three statutes. The first is the Indiana State Highway Commission Bi-partisan Personnel Act (Bi-partisan Act), Ind.Code 8-13-1.5-1 to -8. It provides in parts relevant to this litigation:

8-13-1.5-5 Number of employees per day classification; adjustments by dismissals, demotions, suspensions or lay-offs

Sec. 5. The Highway Commission shall not have more than sixty percent (60%) of the employees covered by this chapter, in each pay classification, and insofar as practicable, as adherents to any one (1) political party. To meet the requirements of this section, the Commission is hereby authorized to discharge at least twenty percent (20%) of all employees employed under the provisions of [182 Ind.App. 689] this chapter at the beginning of each Governor's administration. If, in the opinion of the Commission, rehiring of discharged employees is in the best interest of the Commission, such employees may be reinstated. Employees that are retained or employed under the provisions of this chapter may be dismissed, demoted, suspended or laid off because of their political affiliation in order to achieve the political balance required by this chapter. It is the intent of this chapter, however, to emphasize stability of government through continuity of employment and career opportunity.

8-13-1.5-6 Dismissal, demotion, suspension or lay-off for cause

Sec. 6. Any employee may be dismissed, demoted, suspended or laid off for cause. For the purpose of this chapter cause shall be any action or inaction of any employee that produces, incurs or results in the substantial diminution of the employee's ability or willingness to perform his duties, impairs the ability or willingness of any other employee of the institution or agency of state government to perform his duties or brings discredit upon the State of Indiana. Cause may include but shall not be limited to the following:

Intoxication on the job; physical or mental inability to perform the job requirements; personality characteristics which substantially limit the employee's or his fellow employee's ability to perform his duties, or which severely handicap the administration of the commission; and, action or inaction which severely limits or prohibits the implementation of administrative policies.

This statute has been the subject of abortive attention from the federal courts in a recent series of cases. Boehning v. Indiana State Employees Association, Inc. (1975), 423 U.S. 6, 96 S.Ct. 168, 46 L.Ed.2d 148; Indiana State Employees Association, Inc. v. Boehning, (7 Cir. 1975), 511 F.2d 834, (D.C.1973), 357 F.Supp. 1374.

The question considered was whether the Bi-partisan Act afforded a discharged employee an administrative hearing . . . a question never answered because ultimately the United States Supreme Court decided state law should resolve the issue.

Subsequent to these cases, the Indiana Court of Appeals in Gardner v. Talley (1978), Ind.App., 373 N.E.2d 175 (Transfer denied, June 16, 1978), concluded the Bi-partisan Act did Not create a property interest in highway employees nor was a dismissed employee entitled to a hearing prior to his termination for cause. Judge Lybrook found any [182 Ind.App. 690] language to this effect to be "conspicuously lacking" in the Bi-partisan Act.

The Employees in this case are subject not only to the Bi-partisan Act but also to the Professional and Technical Employees Act (Career Act, Ind.Code 8-13-1-16). So we turn to its pertinent provisions to see if they bestow the right to a hearing. The Career Act elevates professionals and technicians to a special...

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4 practice notes
  • Schultz v. Regents of University of California
    • United States
    • California Court of Appeals
    • October 3, 1984
    ...defined and do not mean the same thing. (See fn. 3, ante.) Similarly, in State ex rel. Indiana State Emp. v. Boehning (Ind.App.1979) 396 N.E.2d 422, employees were demoted from "the salaried position of Engineer Assistant II ... to the position of Laborer ...." (P. 424) (Emphasis added.) Th......
  • City of Indianapolis v. Sherman, No. 2-378A82
    • United States
    • Indiana Court of Appeals of Indiana
    • September 24, 1980
    ...if there is sufficient cause for demotion." State ex rel. Indiana State Employees' Association, Inc. v. Boehning, (1979) Ind.App., 396 N.E.2d 422, It is undisputed Sherman never received any notice regarding his reduction in rank, and no hearing was held. To date, no reason has been given f......
  • Phegley v. Indiana Dept. of Highways, No. 63A01-9006-CV-232
    • United States
    • Indiana Court of Appeals of Indiana
    • December 17, 1990
    ...to certain procedural due process protections upon demotion, State ex rel. Indiana State Employee's Association v. Boehning (1979), 182 Ind.App. 684, 396 N.E.2d 422, trans. denied, the statutes which were the source of that entitlement have since been repealed. The legislature may elect not......
  • Indiana Alcoholic Beverage Commission v. Gault, No. 2-778A230
    • United States
    • Indiana Court of Appeals of Indiana
    • June 16, 1980
    ...interest in employment at a particular rank. State ex rel. Indiana State Employees' Association, Inc. v. Boehning (1979), Ind.App., 396 N.E.2d 422; Morris v. City of Kokomo (1978), Ind.App., 381 N.E.2d 510; State ex rel. Warzyniak v. Grenchik (1978), Ind.App., 379 N.E.2d 997; Jenkins v. Hat......
4 cases
  • Schultz v. Regents of University of California
    • United States
    • California Court of Appeals
    • October 3, 1984
    ...defined and do not mean the same thing. (See fn. 3, ante.) Similarly, in State ex rel. Indiana State Emp. v. Boehning (Ind.App.1979) 396 N.E.2d 422, employees were demoted from "the salaried position of Engineer Assistant II ... to the position of Laborer ...." (P. 424) (Emphasis added.) Th......
  • City of Indianapolis v. Sherman, No. 2-378A82
    • United States
    • Indiana Court of Appeals of Indiana
    • September 24, 1980
    ...if there is sufficient cause for demotion." State ex rel. Indiana State Employees' Association, Inc. v. Boehning, (1979) Ind.App., 396 N.E.2d 422, It is undisputed Sherman never received any notice regarding his reduction in rank, and no hearing was held. To date, no reason has been given f......
  • Phegley v. Indiana Dept. of Highways, No. 63A01-9006-CV-232
    • United States
    • Indiana Court of Appeals of Indiana
    • December 17, 1990
    ...to certain procedural due process protections upon demotion, State ex rel. Indiana State Employee's Association v. Boehning (1979), 182 Ind.App. 684, 396 N.E.2d 422, trans. denied, the statutes which were the source of that entitlement have since been repealed. The legislature may elect not......
  • Indiana Alcoholic Beverage Commission v. Gault, No. 2-778A230
    • United States
    • Indiana Court of Appeals of Indiana
    • June 16, 1980
    ...interest in employment at a particular rank. State ex rel. Indiana State Employees' Association, Inc. v. Boehning (1979), Ind.App., 396 N.E.2d 422; Morris v. City of Kokomo (1978), Ind.App., 381 N.E.2d 510; State ex rel. Warzyniak v. Grenchik (1978), Ind.App., 379 N.E.2d 997; Jenkins v. Hat......

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