Town of Speedway v. Harris

Decision Date10 May 1976
Docket NumberNo. 2--574A117,2--574A117
Citation169 Ind.App. 100,346 N.E.2d 646
PartiesTOWN OF SPEEDWAY, Appellant (Defendant below), v. Michael D. HARRIS, Appellee (Plaintiff below).
CourtIndiana Appellate Court

Henry C. Ryder, Ronald R. Snyder, Roberts, Ryder & Rogers, Indianapolis, for appellant.

Timothy C. Currens, Harris & Currens, MooresvillE for appellee.

BUCHANAN, Presiding Judge.

Defendant-Appellant Town of Speedway (Speedway), appeals from a trial court judgment reinstating the Plaintiff-Appellee Michael D. Harris (Harris) to the Speedway Fire Department with back wages, claiming that (1) Harris was not entitled to a hearing prior to his dismissal; (2) Harris waived any requirement of a hearing by his refusal to attend a hearing subsequent to his dismissal, and (3) improper award of 'full' back wages.

We reverse and remand.


The facts and evidence most favorable to Harris and in support of the trial court's judgment are:

Harris was first employed by the Speedway Fire Department on February 15, 1972, and at that time he was given a copy of the 'Rules and Regulations of the Speedway Fire Department' (Rules and Regulations). Although Harris was not directly informed at the commencement of his employment, that he was a 'probationary fireman' for the first year of his employment, he was subsequently informed of his status by a fellow fireman in his firehouse.

Harris continued working for the Fire Department until January 16, 1973 (approximately 11 months after being hired), when he was presented with a letter of termination by Fire Chief Sowell (Chief Sowell) . . . no prior hearing having been held. Harris immediately requested, and was given by Chief Sowell, a copy of the charges leading to his termination.

On the same day (date of dismissal), Harris telephoned Robert Hoerger (Hoerger), the President of the Speedway Board of Trustees (the Board) and related to Hoerger that he was not given a hearing prior to dismissal, as required by the Rules and Regulations:



Section 1. A violation of any of these rules or regulations, or a neglect or omission of any of the duties prescribed therein, are considered offenses; and any member found guilty after a hearing shall, in the discretion of the Board of Town Trustees, be subject to reprimand, suspension from duty, dismissal from the service, or such other penalties as may be determined. (Emphasis supplied.)

The only reference in the Rules to probationary fireman is contained in Article VII, Section 43 of the Rules: 1 Section 43. Said personnel shall, after newly appointed firemen have served their probationary period in their respective companies, report to the Fire Chief's Office in writing as to whether or not said fireman has proven capable and efficient. If such probationary fireman is transferred to another company within the probationary period, said personnel shall immediately send a written report to the Fire Chief's Office as to said probationary fireman's conduct and efficiency, stating the time of service and full particulars while under his command . . ..

The next evening Hoerger was in the process of arranging a hearing for Harris. After he had obtained 3 of the 5 Board members' consent for such a special Board meeting, Harris telephoned again and related to Hoerger that he was advised by his attorney 'not to take a Hearing, because of the fact that I had already been fired.' 2 As a result, no hearing as to the propriety of Harris' dismissal ever occurred.

On February 16, 1973, Harris filed his 'Complaint for Appeal, Reinstatement, Back Pay and Damages' in the Superior Court of Marion County alleging that Speedway's action was 'arbitrary and capricious' and that he was 'illegally discharged from said (Fire) department without having any charges filed against him and without the opportunity to have a hearing on said charges'. While awaiting the outcome of this action, Harris worked intermittently, earning approximately $2000.

On February 1, 1974, following a nonjury trial, the trial court entered judgment ordering Speedway to reinstate Harris 'to said Speedway Fire Department retroactive to January 17, 1973; and that he be paid by the defendant, Town of Speedway, his back pay from January 17, 1973,' to the date of judgment.

Speedway appeals.


Three issues are presented for our disposition:

ISSUE ONE: Was Harris entitled to a hearing prior to his dismissal?

ISSUE TWO: What was the effect of Harris' refusal of a proffered hearing after he was dismissed?

ISSUE THREE: Did the trial court err in reinstating Harris and awarding him 'full' back wages?

As to ISSUE ONE, Speedway argues that inasmuch as Harris was a 'probationary fireman' he was not entitled to a hearing.

Harris replies that under Article X of the Rules and Regulations, he was entitled to a hearing prior to his dismissal and that it is irrelevant whether or not he was a 'probationary fireman'.

As to ISSUE TWO, Speedway contends that any wrongdoing caused by failure to have a hearing prior to dismissal could have been corrected by the subsequent hearing proffered by the Speedway Board of Trustees; and that Harris' refusal to attend such a subsequent amounted to his waiver of any hearing requirement.

Harris defends his refusal to attend a subsequent hearing, because when 'a property interest is protected by a statute or rule which requires a hearing prior to the taking of the benefit or interest, due process requires that a prior hearing be granted'. 3 As to ISSUE THREE, Speedway submits that the trial court, in awarding 'full back pay', made no allowance, in mitigation, for the $2000 earned by Harris subsequent to his dismissal.

Harris states that although 'the injured party is not entitled to be placed in a better position than if he had not been injured', nevertheless he was entitled to 'vindictive damages' because he was 'knowingly dismissed without due process'.


CONCLUSION--It is our opinion that the Rules and Regulations of the Speedway Fire Department require a hearing prior to a fireman's dismissal, regardless of whether Harris was a 'probationary' or 'regular' fireman.

The 'opportunity to be heard' 4 is a fundamental requirement of 'due process' under the Fourteenth Amendment. If there is 'state action' 5--and the parties agree there is--the right to be heard 'must be granted at a meaningful time and in a meaningful manner,' Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1964); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), but only if there is a Fourteenth Amendment 'liberty' 6 or a 'property' interest at stake. 7 Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2717, 33 L.Ed.2d 581 (1972); Note, 48 Ind.L.J. 127 (1972). Because Harris did not allege, nor present any evidence as to any 'liberty' interests, 8 our decision is necessarily limited as to whether Harris was deprived of a 'property' interest. Roth, supra, 92 S.Ct. at 2705, 2706; State ex rel. Todd v. Hatcher (1973), Ind.App., 301 N.E.2d 766, 772.

'Property' interests, protected by procedural due process, 'extend well beyond ownership of realty, chattels, or money.' Roth, supra, 92 S.Ct. at 2706. Yet the range of such interests does have boundaries, Roth, supra, 92 S.Ct. at 2708, 2709:

The Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests--property interests--may take many forms.

Thus the Court has held that a person receiving welfare benefits under statutory and administrative standards defining eligibility for them has an interest in continued receipt of those benefits that is safeguarded by procedural due process. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287. See Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435. Similarly, in the area of public employment, the Court has held that a public college professor dismissed from an office held under tenure provisions, Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, and college professors and staff members dismissed during the terms of their contracts, Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, have interests in continued employment that are safeguarded by due process. Only last year, the Court held that this principle 'proscribing summary dismissal from public employment without hearing or inquiry required by due process' also applied to a teacher recently hired without tenure or a formal contract, but nonetheless with a clearly implied promise of continued employment. Connell v. Higginbotham, 403 U.S. 207, 208, 91 S.Ct. 1772, 1773, 29 L.Ed.2d 418.

Certain attributes of 'property' interests protected by procedural due process emerge from these decisions. 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.

Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Thus, the welfare recipients in Goldberg v. Kelly, supra, had a claim of entitlement to welfare payments that was grounded in the statute defining eligibility for them. The...

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