Turner v. Town of Speedway

• Decision Date: 04 October 1988
• Docket Number: No. 49A02-8707-CV-295,49A02-8707-CV-295
• Parties: Steven TURNER, Appellant (Plaintiff), v. The TOWN OF SPEEDWAY, Indiana and the Board of Metropolitan Police Commissioners of Speedway, Indiana, Appellees (Defendants).
• Court: Indiana Appellate Court

Page 858

528 N.E.2d 858

Steven TURNER, Appellant (Plaintiff), v. The TOWN OF SPEEDWAY, Indiana and the Board of Metropolitan Police Commissioners of Speedway, Indiana Appellees (Defendants).

No. 49A02-8707-CV-295.

Court of Appeals of Indiana,

Second District.

Oct. 4, 1988.

Charles P. Gaddy, Gaddy & Gaddy, Indianapolis, for appellant.

Keith E. White, Barnes & Thornburg, Indianapolis, for appellees.

BUCHANAN, Judge.

CASE SUMMARY

Appellant-plaintiff Steven Turner (Turner) appeals the trial court's grant of summary judgment in favor of appellees-defendants the Town of Speedway and the Board of Metropolitan Police Commissioners of Speedway (the Commissioners), claiming that the trial court erred in determining that the Commissioners were in substantial compliance with the Indiana Open Door Law and that defects in compliance with the Open Door Law could be cured by a subsequent meeting that was in full compliance with the law.

We reverse.

FACTS

The facts are undisputed. In 1986, three positions for the rank of uniform sergeant became available within the Speedway Police Department. Turner was a candidate for promotion. The Commissioners, comprised of three members, resolved in a regular meeting held on September 2, 1986, that interviews for the three sergeants' positions would be held on September 11, 1986. A notice was posted announcing the positions and encouraging qualified personnel to apply. After the application deadline had closed, a schedule of the interviews for September 11 was posted.

The interviews, including Turner's, were conducted on September 11 in the Chief of Police's office. All three Commissioners and the Chief of Police were present. The record does not disclose whether the public was permitted to attend the interview sessions. However, no minutes or memoranda were kept of these interview sessions for public inspection. In the past, the Commissioners would discuss candidates immediately following the last interview. On this occasion, the Commissioners adjourned with little or no discussion because one Commissioner was leaving town early the next morning.

The Commissioners, instead, met for breakfast on September 23, 1986, at a pancake house and discussed all eight candidates for the promotion. No public notice was given, no agenda was posted, and no minutes were made of the breakfast gathering. The Commissioners claimed that no vote was taken, but it was decided which one of the Commissioners would make a motion at the next regularly held meeting to nominate three candidates for the promotion. Commissioner Robert O'Neal explained the discussion held at the breakfast gathering:

"There was first sort of a tacit, if that's the right word, between the three of us that we ought to give the corporals good consideration. Understand, which you disagree with apparently, we had no vote, no vote whatsoever here because of this outdoor [sic] law. You sit there like a bunch of dummies and not try to feel out the other guy, but [Commissioner] Cassady said that [Commissioner] Sipe said some good things about Krammer [a candidate] and he mentioned seniority of Turner and that he and the corporal have the same seniority, 13 years and three months. One has four and one has three. And so [Commissioner] Cassady said he couldn't agree with [Commissioner] Sipe on Krammer so we just left.

So on our October 7th meeting, I swear before God and anybody, I didn't have any more idea who [Commissioner] Cassady was going to nominate than you Record at 69-70.

did, and I don't think [Commissioner] Sipe did. Because we--you can't vote on these things until you are in the meeting room in front of everybody. I mean that's the motion that does it."

A regular meeting, pursuant to statutory requirements, was held by the Commissioners on October 7, 1986 at the Speedway Town Hall. The agenda for the meeting contained the following item: "Announce appointment of Uniform Sergeants." Record at 105. The minutes from that meeting reflect that "Chairman Sipe reported that Board of Police Commissioners had interviewed all the applicants for the Uniform Sergeants' positions, reviewed each of their records and backgrounds, and had met several times to make the very difficult decision of promoting three of the applicants to these positions." Record at 106 (emphasis supplied). Commissioner Cassady moved to nominate the two corporal applicants and another officer, not Turner, to the rank of Uniform Sergeants. The resolution was unanimously adopted by the Commissioners.

In granting summary judgment, the trial court concluded the following:

1. That the meeting of [the Commissioners] on October 7, 1986, was in substantial compliance with the Indiana Open Door Law, IC 5-14-1.5-1 [to -7].

2. That any defect in compliance with the above-referenced act, which may have occurred at earlier meetings of [the Commissioners] was cured by the meeting of October 7, 1986.

3. There is no suggestion that access to the hearing by interested spectators was impeded or restricted in any manner.

4. There is no suggestion that [Turner], or any member of the public was restricted from presenting any information they wished to present.

5. There is no genuine issue of material fact relative to the violation of the Open Door Law...."

Record at 155.

ISSUES

The Commissioners raise the following preliminary issue:

1. Is Turner precluded from raising any error regarding alleged violations of the Indiana Open Door Law at the September 11 and 23, 1986, meetings when Turner's complaint only alleges violations of the Indiana Open Door Law occurring on or about October 7, 1986?

Turner raises six issues, which we restate as essentially two issues:

2. Whether the failure to observe the statutory requirements of the Indiana Open Door Law at the meetings held on September 11 and 23 was cured by the meeting held by the Commissioners on October 7, 1986?

3. Whether a genuine issue of material fact exists regarding when the Commissioners made a final determination of the officers who would be promoted to uniform sergeant?

DECISION

ISSUE ONE--Is Turner precluded from raising any error regarding alleged violations of the Indiana Open Door Law at the September 11 and 23, 1986, meetings when Turner's complaint only alleges violations of the Indiana Open Door Law occurring on or about October 7, 1986?

PARTY'S CONTENTION--The Commissioners maintain that Turner cannot complain of the alleged violations of the meetings prior to October 7 because the complaint was framed only in terms of violations in the October 7 meeting.

CONCLUSION--Indiana follows liberal pleading rules and the complaint is deemed amended to conform to the evidence.

The Commissioners' argument does not prevail because Ind.Rules of Procedure, Trial Rule 15, provides that the pleadings are amended to conform to the evidence. In the interest of promoting justice, litigants are granted considerable latitude during the formative stages of the litigation so that the issues may be drawn and refined within the broad discovery afforded by the rules. Colonial Mortgage Co. v. Windmiller (1978), 176 Ind.App. 535, 376 N.E.2d 529. The trial court specifically considered the "earlier meetings" in its findings. The Commissioners failed to demonstrate any prejudice as the amendments did not change or add to any theories but corrected only evidentiary facts. See Criss v. Bitzegaio (1981), Ind., 420 N.E.2d 1221; see also McAfee v. State ex rel. Stodola (1972), 258 Ind. 677, 284 N.E.2d 778. The trial court did not abuse its discretion in amending Turner's complaint to conform with the evidence even though Turner did not file a motion requesting leave of the court to file an amended complaint and the Commissioners did not consent to the amendments. See Criss, supra.

ISSUE TWO--Whether the failure to observe the statutory requirements of the Indiana Open Door Law at the meetings held on September 11 and 23 was cured by the meeting held by the Commissioners on October 7, 1986?

PARTIES' CONTENTIONS--Turner contends the Indiana Open Door Law applies to the interview sessions on September 11th and the breakfast gathering on September 23rd because the Commissioners received information, deliberated, and allegedly made a final determination on the promotions. He argues that the failure to maintain minutes of these meetings and the failure to post an agenda and give public notice of the September 23rd meeting were violations of the law and cannot be cured by a subsequent meeting which met the statutory requisites. He further claims the trial court erred in applying a "substantial compliance" standard.

The Commissioners respond that the alleged improprieties in the prior meetings are minor, technical violations, that they "substantially complied" with the law, and therefore summary judgment was proper. The Commissioners argue, in any event, that the Indiana Open Door Law, as it existed at the time of Turner's cause of action, did not allow a court to declare void a vote taken in an entirely proper open door meeting based upon alleged violations in prior meetings.

CONCLUSION--The deficiencies of the September 11th and 23rd "meetings" were not cured by the meeting held October 7, 1986.

The Indiana Open Door Law as it existed in 1986 is embodied in Ind. Code 5-14-1.5-1 to -7 (1982) (amended 1987 and 1988). In part, it provides that "all meetings of the governing bodies of public agencies must be open at all times for the purpose of permitting members of the public to observe and record them." IC 5-14-1.5-3. "Public notice of the date, time and place of any meetings ... shall be given at least forty-eight (48) hours before the meeting...." IC 5-14-1.5-5. If the public agency utilizes an agenda, the governing body is required to "post a copy of the agenda at the entrance to the location of the meeting prior to the meeting." IC 5-14-1.5-4(a). "As the meeting progresses, the following memoranda shall be kept: (i) the...