State ex rel. Warzyniak v. Grenchik

• Decision Date: 29 August 1978
• Docket Number: No. 3-676A157,3-676A157
• Citation: 379 N.E.2d 997,177 Ind.App. 393
• Parties: STATE of Indiana on relation of Raymond WARZYNIAK, Robert Gacsko, Heppy Michna, Frank Kobli, Richard Hora, and George Golub, Appellants (Plaintiffs below), v. Joseph B. GRENCHIK, Gerald Haluska, Paul Sinal, George Zahorsky, and City of Whiting, Indiana, Appellees (Defendants below).
• Court: Indiana Appellate Court

Page 997

379 N.E.2d 997

177 Ind.App. 393

STATE of Indiana on relation of Raymond WARZYNIAK, Robert

Gacsko, Heppy Michna, Frank Kobli, Richard Hora, and George Golub, Appellants (Plaintiffs below), v. Joseph B. GRENCHIK, Gerald Haluska, Paul Sinal, George

Zahorsky, and City of Whiting, Indiana, Appellees

(Defendants below).

No. 3-676A157.

Court of Appeals of Indiana, Third District.

Aug. 29, 1978.

Hilbert L. Bradley, Gary, for appellants.

C. Jerome Smith, Hammond, Gerald Haluska, Whiting, for appellees.

STATON, Judge.

Upon the installation of the new Mayor, the City of Whiting's Police Department was reorganized. Police officers in positions ranging from Chief to Sergeant were demoted to the rank of Patrolman, with commensurate reductions in salary. The trial court denied their request for relief. We hold that a municipal ordinance provided each policeman with a legitimate claim of entitlement to continued employment in his particular position. Because the City of Whiting improperly demoted appellant policemen, in violation of due process, we reverse.

On January 1, 1976, appellant policemen were demoted to the rank of Patrolmen by individual letters received from appellee Grenchik, the newly-installed Mayor. Each policeman suffered a substantial reduction in salary. The mayor specified no cause for the demotions. No notice was given and no hearings were held prior to the demotions.

The demoted policemen filed a complaint for mandate, reinstatement, injunctive relief, damages and preliminary injunction. Their complaint alleged that the City of Whiting (through its officers) failed to follow the statutory requirements for demotions as set out in a municipal ordinance and in a state statute.

Municipal Ordinance No. 1057, 14-108, Section 8 (as amended by Ordinance 1083), provides as follows:

"Policemen who have been appointed permanently to the Police Department may be discharged or suspended without pay, or demoted or reduced in rank or fined for the following reasons:

(a) A policeman may, by the Board of Public Works, be suspended without pay not to exceed 30 days, demoted or reduced in rank, for the violation of the written rules and regulations adopted by the Board of Public Works, or issued by the Police Chief.

(b) The Chief of the Police Force may suspend any policeman not to exceed 10 calendar days, with right of appeal to the Board of Public Works, for violations of rules and regulations adopted by the Board of Public Works, or issued by the Police Chief.

(c) A policeman may be suspended for more than 30 days or may be discharged from the Police Force only upon one of the following grounds:

1. Willful failure to carry out the direct and lawful orders of a superior officer.

2. Drunkenness or the use of narcotics while on duty to such an extent that the use thereof interferes with the efficiency or mental or physical fitness of the Policeman and which prevents the policeman from properly performing his duties.

3. Failure to report for duty at the time scheduled without giving notice of inability to report; provided however, that such failure to report is not caused by sudden illness, accident or other circumstances beyond his control that would prevent him from giving such notice.

4. Failure to report for duty when directly ordered to do so; provided that policeman is well and able to carry out his duties. Examination and opinion of any physician appointed by the Pension Board or the Board of Public Works shall be conclusive in this regard.

5. Solicitation or acceptance of a bribe.

6. Conviction of a felony.

7. Willful and repeated violations of the rules and regulations adopted by the Board of Public Works, or by the Police Chief; provided however, that 'repeated violations' shall mean the conviction of more than two violations in any one year.

8. Cowardice while on duty.

9. False statement on application for employment, or false statement under oath to the Board of Public Works or Pension Board.

10. Procedure for removal or suspension in excess of 30 days shall be as provided in Burns Indiana Statutes 48-6105 and Acts amendatory and supplemental thereto."

IC 18-1-11-3, Ind.Ann.Stat. § 48-6105 (Burns Code Ed.) contains the following provisions:

"Every member of the fire and police forces, including police radio operators and police signal and fire alarm operators, appointed by the mayor, the commissioners of public safety or the board of metropolitan police commissioners, shall hold office until they are removed by said board. They may be removed for any cause other than politics, after written notice is served upon such member in person or by copy left at his last and usual place of residence notifying him or her of the time and place of hearing, and after an opportunity for a hearing is given, if demanded, and the written reasons for such removal shall be entered upon the records of such board. 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. . . .

"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 to the circuit court or superior court of the county in which such city is located from such decision of dismissal or suspension by said board, but shall not have the right of appeal from any other decision." ¹

At trial, Mayor Grenchik testified that he did not recall the ordinance when he wrote the letters of demotion.

The City claimed that no "written rules and regulations," described in Ordinance 1057, 14-108, Section 8, were adopted by the Board of Public Works or the Police Chief. Nonetheless, some of the rules and regulations governing police conduct were introduced. Several of the demoted policemen testified that their conduct provided no cause for demotion, and that they did not violate any of the Board's rules or the Chief's orders.

The trial court found that the demoted policemen had not been provided written charges or afforded an opportunity for a hearing. Yet, the court concluded ² that Ordinance 1507 did not require demotions to be for cause, with provision of written charges, notice and hearing. It further concluded that the policemen had not been deprived of due process protections guaranteed by the Fourteenth Amendment of the United States Constitution.

On appeal, appellant policemen argue that the requirement (contained in Municipal Ordinance 1057) that a demotion must be for cause implicitly guarantees permanently-appointed policemen the protections of procedural due process. The City's failure to provide each demoted policeman with charges, notice and a hearing renders the demotions void.

The City of Whiting, appellee, contends that the ordinance does not apply to police department reorganizations such as this one. The City claims the "permissive" language of the ordinance (May be demoted, rather than Shall ) indicates that the ordinance does not contain the complete list of grounds for demotion. Further, the City claims that the ordinance could not be effected since none of the necessary written rules and regulations were ever adopted.

The issue we must decide can be stated as follows:

DID A STATUTE OR ORDINANCE AFFORD EACH APPELLANT A LEGITIMATE PROPERTY INTEREST IN HIS RANK SUCH THAT A DEMOTION WITHOUT PROOF OF SUFFICIENT CAUSE DEPRIVES HIM OF DUE PROCESS?

Before appellant policemen could have been deprived of Fourteenth Amendment guarantees, they must first have had a property interest which was protected by procedural due process. As explained in Board of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 "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."

See also Town of Speedway v. Harris (1976), Ind.App., 346 N.E.2d 646.

When "cause" is required before an employment relationship may be altered (to the detriment of the employee), due process protections attach. Roth, supra, 408 U.S. at 578, 92 S.Ct. at 2709; Gary Teachers Union, Local No. 4, A.F.T. v. School City of Gary (1975), Ind.App., 332 N.E.2d 256, 259. Thus, the concept of property includes a legitimate claim of entitlement to continued employment at a particular rank, absent "sufficient cause" for demotion. ³ 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 684, "the sufficiency of the claim of entitlement must be decided by reference to state law."

Appellant policemen base their claim of entitlement to rank upon a state statute, IC 18-1-11-3, and Municipal Ordinance No. 1057, 14-108, Section 8, both of which are set out earlier in this opinion.

Recently, a federal district court in Indiana decided a very similar case involving a claim of entitlement based...