Untch v. Chaddock
| Decision Date | 15 March 1988 |
| Docket Number | No. 64A03-8708-CV-230,64A03-8708-CV-230 |
| Citation | 520 N.E.2d 118 |
| Parties | Fred T. UNTCH, Robert Cibak, and Ted Jarosak, Plaintiffs-Appellants v. Stephen CHADDOCK, Chief of the Portage Police Department; Board of Public Works and Safety of the City of Portage; Anita Bando, Clerk-Treasurer of the City of Portage; and Portage City Council, Defendants-Appellees |
| Court | Indiana Appellate Court |
Gary S. Germann, Portage, for plaintiffs-appellants.
Michael C. Handlon, Handlon & Handlon, Portage, for defendants-appellees.
Fred T. Untch, Robert Cibak, and Ted Jarosak, who are members of the Portage Police Department, appeal the entry of summary judgment in favor of the Chief of the Portage Police Department, the Board of Public Works and Safety of the City of Portage, the Clerk Treasurer of the City of Portage and the Portage City Council. The only issue presented by this appeal is whether the policemen were entitled to notice and an opportunity to be heard before ranks to which they had been promoted were eliminated from the structure of the police department during their probationary period which had been extended from one year to one and one-half years after the promotions were received. We affirm.
Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Indiana Rules of Procedure, Trial Rule 56(C). Normally when reviewing a grant of summary judgment, this court looks at the facts most favorable to the non-moving party and the reasonable inferences to be drawn therefrom. Frady v. Hedgcock (1986), Ind.App., 497 N.E.2d 620, 622 quoting Penwell v. Western and Southern Life Insurance Co. (1985), Ind.App., 474 N.E.2d 1042, 1044. In this case, however, the parties filed a stipulation regarding the relevant facts and our opinion is therefore based upon the facts it contains.
On January 10, 1983 and effective January 16, 1983, Untch, Cibak and Jarosak each received promotions from the Board of Public Works and Safety for the City of Portage. At the time the promotions were given, the appointments were probationary for a period of one year. In January of 1984, Stephen Chaddock was appointed Chief of Police and on the 15th of January, the Board of Public Works amended the regulations regarding probationary periods by extending the period to one and one-half years. On July 13, 1984, the Board eliminated from the rank structure of the police department the ranks to which Untch, Cibak and Jarosak had been promoted. The officers contend that due process required that the Board give them notice and an opportunity to be heard at the special meeting during which their ranks were eliminated.
An employee is entitled to due process protections such as notice and an opportunity to be heard only if the employee has a constitutionally protected property interest in his continued employment or a benefit connected with that employment. See Gansert v. Meeks (1979), 179 Ind.App. 209, 384 N.E.2d 1140. An employee possesses such a property interest only if he has a legitimate claim of entitlement to the continued employment or benefit. Board of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548. In determining whether an employee has a legitimate claim of entitlement, this court has considered whether the interest has vested. See, e.g., Foley v. Consolidated City of Indianapolis (1981), Ind.App., 421 N.E.2d 1160. "In order for a right to vest ... it must be 'immediate, absolute, complete, unconditional, perfect within itself and not dependent upon a contingency.' " Id. at 1168, citing Martin v. Simplimatic Engineering Corp. (1979), 181 Ind.App. 10, 390 N.E.2d 235, 237, quoting Parr v. Paynter (1922), 78 Ind.App. 639, 643, 137 N.E. 70, 71.
Absent any specific rule, regulation, or statute to the contrary, a probationary employee does not have a vested right to continued employment. Gansert...
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