APPEAL FROM THE ALLEN SUPERIOR COURT, The Honorable Vern E. Sheldon, Judge, Cause No. S-86-416.
Hoffman, Staton, J., and Miller, P.j., Concur.
On February 4, 1986, Tommy Joe Small was dismissed from his position as Town Marshal of Monroeville, Indiana. The dismissal was ordered by the Board of Safety of the Town of Monroeville after a hearing held on January 13, 1986. Small sought judicial review, and the trial court decided the case without trial, based on the exhibits and transcript from the Safety Board hearing plus supplemental briefs. On January 5, 1987, the trial court issued its written findings of facts and Conclusions of law which affirmed the Safety Board decision. From the court's judgment, Small appeals.
The following undisputed facts of this apparently unique case are largely adopted from the trial court's findings of fact. The case had its genesis in August 1985 when the town was notified that its comprehensive liability insurance carrier would no longer provide coverage. The policy was due to expire on January 5, 1986.
There ensued several months of searching for a new insurance carrier. While the methodology was not very sophisticated, the town board did contact a number of area insurance agents, who, in turn, contacted a reasonably extensive sampling of insurance companies. Despite this, the search proved fruitless until December 21, 1985, when insurance was offered by the Bliss Insurance Company of Indiana. The offer was subject to the limitation that vehicle coverage would not be provided if a certain individual who had wrecked a town police car several years before was still employed by the town. The record contains no details of this accident, but Tommy Joe Small was the driver of the wrecked vehicle.
On December 23, 1985, the town board held a meeting, which Small attended, to discuss the insurance problem. Two actions occurred as a result of this meeting. On December 27, 1985, the last available day, the town delivered a check to the Bliss Insurance Company to bind the coverage. On January 5, 1986, Small was officially given notice that he was suspended from duty, with pay, for ten days. At the end of the ten days he would be suspended for an additional twenty days, without pay, and at the end of this thirty-day period, if he was not reinstated, he would be dismissed. Reinstatement was conditioned on either the town or Small finding alternative insurance, during the thirty days, at no additional cost to the town.
The notice assured Small that the suspension was not motivated by any dissatisfaction with his job performance. Instead the sole cause for the action was the town's inability to get insurance so long as Small was an employee. The notice also offered Small an opportunity for a hearing before the Board of Safety.
Small exercised this option and a hearing was held on January 13, 1986. It appears that this hearing was conducted without rancor and Small was afforded a full measure of procedural due process. Witnesses were called, and Small, by his attorney, conducted cross-examination. The witnesses primarily recounted the efforts the town had gone through to obtain insurance without the condition affecting Small's position. Donald Gerardot, president of the Board of Trustees for the Town of Monroeville, also testified that the town intended to eventually replace Small, if alternative insurance could not be found. In addition, Small, testifying in his own behalf, said that his search for alternative insurance had also been fruitless.
Ultimately, on January 31, 1986, the Safety Board issued written findings of fact which affirmed the suspension and dismissal. The trial court affirmed the Board's decision and on appeal Small raises one central issue which is:
whether the action to terminate Small as town marshal was contrary to law.
The discipline, demotion and termination of police officers is governed by IND. CODE § 36-8-3-4 (1985 Supp.). This section generally provides that a police officer cannot be disciplined, demoted or terminated except for good cause. The statute enumerates ten categories of conduct that justify disciplinary action. The statute also specifies the degree of due process an officer must receive before disciplinary action is taken.
Here it is unnecessary to discuss application of the statute. Small does not quarrel with the quality of procedural due process that he received and both parties agree that Small was not terminated for any of the statutory causes. Instead, the town argues, and the trial court expressly found, that Small's dismissal comes within the "economic exception" to the general rule which requires specification of a good cause reason before termination of a police officer.
The economic exception was first articulated in Indiana, in Shira v. State, et al. (1918), 187 Ind. 441, 444-445, 119 ...