Sullivan v. City of Evansville

• Decision Date: 27 April 2000
• Docket Number: No. 82A01-9906-CV-191.,82A01-9906-CV-191.
• Citation: 728 N.E.2d 182
• Parties: Bradley A. SULLIVAN, Appellant-Plaintiff, v. CITY OF EVANSVILLE, Appellee-Defendant.
• Court: Indiana Appellate Court

728 N.E.2d 182

Bradley A. SULLIVAN, Appellant-Plaintiff, v. CITY OF EVANSVILLE, Appellee-Defendant.

No. 82A01-9906-CV-191.

Court of Appeals of Indiana.

April 27, 2000.

Frank C. Capozza, Offer Korin, Katz & Korin, P.C., Jeffrey W. Waggoner, Indianapolis, Indiana, Attorneys for Appellant.

Michael D. Marine, Bradley L. Williams, Ice Miller Donadio & Ryan, Indianapolis, Indiana, Attorneys for Appellee.

Douglas D. Church, Church, Church, Hittle & Antrim, Noblesville, Indiana, Attorney for Amicus Curiae Indiana Municipal Lawyers Association.

Jo Angela Woods, Indiana Association of Cities and Towns, Indianapolis, Indiana, Attorney for Amicus Curiae Indiana Association of Cities and Towns.

OPINION

BROOK, Judge

Case Summary

Appellant-plaintiff Bradley A. Sullivan ("Sullivan") challenges the trial court's grant of summary judgment in favor of appellee-defendant City of Evansville ("the City") on his appeal of the disciplinary order of the Evansville Police Merit Commission ("the Commission"). We affirm in part and reverse in part and remand with instructions.

Issues

Sullivan raises four issues for review, which we restate as follows:

I. whether the Commission had the authority to discipline Sullivan;

II. whether Evansville Police Chief Art Gann ("Chief Gann") had the authority to discipline Sullivan;

III. whether Sullivan was denied due process of law at the Commission hearing; and

IV. whether the Commission's punishment of Sullivan was arbitrary and capricious.

Facts and Procedural History

Sullivan was permanently appointed as an officer of the Evansville Police Department ("EPD") on September 11, 1996, after completing a one-year probationary period. On June 30, 1997, Sullivan and his partner, Officer Bradley Turner ("Turner"), stopped a car driven by Jade Caudill ("Caudill") and questioned her passenger, seventeen-year-old Denah Dannheiser ("Dannheiser"), for underage smoking and using false identification.

On July 25, 1997, Dannheiser filed a signed and sworn citizen's complaint against Sullivan, in which she alleged that she was smoking in the passenger seat of Caudill's car on Green River Road when Sullivan drove alongside and asked her whether she was eighteen years old. Dannheiser told him she was and showed him her older sister's driver's license in response to his request for identification. Sullivan took her billfold and drove to a nearby parking lot, and Caudill and Dannheiser followed. According to Dannheiser, after she exited the car to retrieve her billfold, Sullivan asked her how much she weighed, asked her to turn around, commented on her weight, and told her that he could take her to jail and write her tickets for underage smoking and using her older sister's ID. Sullivan asked for and received Dannheiser's phone number and told her that he would not return her billfold unless she gave him a kiss. After Dannheiser kissed Sullivan on the cheek, he returned her billfold and asked her to meet him at the high school parking lot after he finished his shift; she did not do so. On July 15, 1997, he telephoned her at her home and again requested that she meet him at the high school parking lot. Dannheiser informed her mother, Debra Hite ("Hite"), of Sullivan's actions, and Hite contacted the police department's internal affairs division. After an investigation, Sullivan was found to have violated three departmental regulations: attention to duty/failure to follow standard operating procedure; improper conduct; and discourtesy.

On November 20, 1997, Chief Gann suspended Sullivan from November 22 through November 26 without pay. On November 24, 1997, Sullivan requested a hearing before the Commission to appeal Chief Gann's decision. The three-member Commission conducted the hearing on April 27, 1998, and issued its decision the following day. The Commission agreed with Chief Gann's findings, suspended Sullivan without pay for one year, and ordered him to serve a two-year probationary period. Additionally, the Commission ordered Sullivan to submit to a mental health evaluation and to any "counseling or treatment pursuant to the findings of the evaluation."

Pursuant to Indiana Code Section 36-8-3-4(e), Sullivan appealed the Commission's decision to the trial court on May 27, 1998. On February 1, 1999, Sullivan filed a motion for summary judgment in which he alleged that neither the three commissioners nor Chief Gann had the authority to discipline him because all four persons resided outside Evansville city limits in violation of Article 6, Section 6 of the Indiana Constitution;¹ that he had been denied due process at the disciplinary hearing; and that his punishment was arbitrary and capricious. On March 23, 1999, the City filed its own summary judgment motion in which it argued, inter alia, that Sullivan had waived his residency arguments by failing to raise them at the disciplinary hearing. The trial court held a hearing on both motions and granted summary judgment in favor of the City on April 23, 1999. Sullivan now appeals; additional facts will be supplied as necessary.

Discussion and Decision

Standard of Review²

When reviewing the grant or denial of a motion for summary judgment, we apply the same standard as the trial court: namely, that summary judgment is appropriate where there are no designated genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Indiana Ins. Co. v. American Community Servs., Inc., 718 N.E.2d 1147, 1152 (Ind.Ct.App.1999). The moving party must demonstrate the absence of any genuine issue of fact as to a determinative issue, and only then is the non-moving party required to come forward with contrary evidence. Id. We liberally construe all designated evidentiary material in a light most favorable to the nonmovant to determine whether a genuine issue of fact exists for trial. Interstate Cold Storage, Inc. v. General Motors Corp., 720 N.E.2d 727, 730 (Ind.Ct.App.1999).

"Specific findings and conclusions by the trial court are not required, and although they offer valuable insight into the rationale for the judgment and facilitate our review, we are not limited to reviewing the trial court's reasons for granting or denying summary judgment." Id. Cross motions for summary judgment do not alter our standard of review. See American Community Servs., 718 N.E.2d at 1152. "Even if the facts are undisputed, summary judgment is inappropriate where the record reveals an incorrect application of law to the facts." Interstate Cold Storage, 720 N.E.2d at 730. However, "[a] grant of summary judgment may be affirmed upon any theory supported by the designated materials." Id. As the party appealing the grant of summary judgment, Sullivan bears the burden of persuading us that the trial court erred. See American Community Servs., 718 N.E.2d at 1152.

The discipline of police officers is within the province of the government's executive, rather than judicial, branch. McDaniel v. City of Evansville, 604 N.E.2d 1223, 1225 (Ind.Ct.App.1992), trans. denied (1993). "For this reason, we will not substitute our judgment for that of the administrative body when no compelling circumstances are present." Id.

Judicial review of administrative decisions is very limited. Deference is to be given by the reviewing court to the expertise of the administrative body. Discretionary decisions of administrative bodies, including those of police merit commissions, are entitled to deference absent a showing that the decision was arbitrary and capricious, or an abuse of discretion, or otherwise not in accordance with law. Further, review is limited to determining whether the administrative body adhered to proper legal procedure and made a finding based upon substantial evidence in accordance with appropriate constitutional and statutory provisions. The reviewing court may not substitute its judgment for that of the administrative body or modify a penalty imposed by that body in a disciplinary action, without a showing that such action was arbitrary and capricious.

City of Indianapolis v. Woods, 703 N.E.2d 1087, 1090-91 (Ind.Ct.App.1998), trans. denied (1999) (citations omitted).

I. Commission's Authority to Discipline Sullivan

The tenure given a police officer "is a constitutionally protected interest requiring the opportunity for a fair hearing conducted in good faith before a full and impartial body." Atkinson v. City of Marion, 411 N.E.2d 622, 628 (Ind.Ct.App. 1980); see also Dell v. City of Tipton, 618 N.E.2d 1338, 1342 (Ind.Ct.App.1993)

(referring to Ind.Code § 36-8-3-4, which outlines police disciplinary hearing and appeal procedures). "Although such proceedings are not subject to all of the procedural safeguards afforded at a trial, it is evident, as our courts have held, that the procedural standards should be at the highest level workable under the circumstances, and that the fact-finding process should be free of suspicion or even the appearance of impropriety." Atkinson, 411 N.E.2d at 628. Any decision of an administrative board "predicated upon a hearing devoid of the requisite requirements is illegal and void." City of Marion v. Antrobus, 448 N.E.2d 325, 329 (Ind.Ct.App.1983). "One of the requisites of a fair hearing is that the administrative board have a legal quorum[.]" Id.³

Sullivan contends that because none of its members fulfilled the Indiana Constitution's residency requirements, the Commission lacked a legal quorum to hear his appeal; therefore, its decision is void and must be reversed as a matter of law. Sullivan relies heavily on Antrobus, in which a police officer challenged the eligibility of two administrative board members who were to preside over his disciplinary hearing and moved for dismissal of the pending charges due to the lack of a "legal quorum of members to conduct official business."⁴ See Antrobus, 448 N.E.2d at 327

. The trial court concluded that the board lacked a legal quorum and that its decision to dismiss...