Opinion
Cause No. IP01-0044-C H/K, IP01-0044-C-H/G
November 26, 2001
ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Joseph Fortner is a firefighter and former fire chief and deputy fire chief for the City of Greenfield, Indiana. He has sued the mayor of Greenfield, the chief of the Greenfield Fire Department, and the Board of Public Works of Greenfield for allegedly violating his due process rights under the Fourteenth Amendment. Fortner claims that an Indiana statute and a city ordinance gave him a property interest in his position as deputy chief. He claims that his demotion in rank from deputy fire chief to fireman paramedic first class, without being granted a hearing, deprived him of a protected property interest in his job without due process of law.
The parties have filed cross-motions for partial summary judgment, and there is no dispute as to the material facts. As explained below, defendants are entitled to partial summary judgment because Fortner had no property interest in his position as deputy chief. The Indiana statute, Ind. Code § 36-8-3-4(m), excludes a deputy chief from the protections Fortner claims. The city ordinance imposes no substantive restrictions on the chief's power to demote a deputy chief and therefore cannot support a federal due process claim.
Undisputed Facts
Joseph Fortner began working for the Greenfield Fire Department in 1984. In 1996 he was promoted to the department's highest rank, fire chief. Greenfield elected a new mayor, defendant Rodney Fleming, who took office in January 2000. On February 14, 2000, Mayor Fleming appointed Lewis McQueen as Greenfield's new fire chief. At the same time, Fortner was demoted to deputy chief, the second highest position in the department. On April 24, 2000, Mayor Fleming announced that Fortner was being demoted to fireman paramedic first class, the position that Fortner held just before he became fire chief in 1996. On April 27, 2000, before his demotion to fireman paramedic took effect, Fortner requested a hearing before the Greenfield Board of Public Works and Safety. His request was rejected. The demotion took effect on April 29, 2000, reducing Fortner's annual salary by $5,000.
The only reason given by the defendants for Fortner's demotion to fireman paramedic was that it was in the best interest of the department. Fortner has never been disciplined for any reason during his career with the department. Defendants do not contend that they had any grounds that would support Fortner's demotion if he were entitled, as deputy chief, to the civil service protections of Ind. Code § 36-8-3-4(b) — (l).
Discussion
Plaintiff Fortner asserts federal claims for deprivation of property without due process of law. State statutes, constitutions, and municipal ordinances may create a property interest in employment, such that an employee may not be deprived of that property interest without due process of law. Board of Regents v. Roth, 408 U.S. 564, 577 (1972); Hohmeier v. Leydon Community High School Dist. 212, 954 F.2d 461, 464 (7th Cir. 1992); Domiano v. Village of River Grove, 904 F.2d 1142, 1147 (7th Cir. 1990).
By statute Indiana has provided civil service protection for most police officers and firefighters in Ind. Code § 36-8-3-4(b), which prohibits demotion, dismissal, reprimand, forfeiture, or suspension except for specified good causes and through specified procedures. Those protections are sufficient, where they apply, to provide a property interest protected by the Due Process Clause. Parrett v. City of Connersville, 737 F.2d 690, 694 (7th Cir. 1984).
The undisputed facts show that Fortner did not receive notice and an opportunity for a hearing sufficient to satisfy the requirements of due process, if those requirements applied. Thus, the decisive question is whether Fortner can show a property interest in his position as deputy chief. See Johnson v. City of Fort Wayne, 91 F.3d 922, 943 (7th Cir. 1996) (affirming summary judgment for defendant's on assistant fire chief's due process claim).
The statute provides that the protections of subsection (b) apply "[e]xcept as provided in subsection (m)." Ind. Code § 36-8-3-4(b). Subsection (m) provides:
Except as provided in IC 36-5-2-13, the executive may reduce in grade any member of the police or fire department who holds an upper level policy making position. The reduction in grade may be made without adhering to the requirements of subsections (b) through (l). However, a member may not be reduced in grade to a rank below that which the member held before the member's appointment to the upper level policy making position.
Ind. Code § 36-8-3-4. The parties agree for purposes of this case that in Greenfield, both the fire chief and the deputy chief are "upper level policy making positions" under § 36-8-3-4. See Ind. Code § 36-8-1-12 (defining term to include deputy chief if department has more than ten members); see also Johnson, 91 F.3d at 943-44 (affirming summary judgment for city on assistant fire chief's due process claim arising from demotion); Lohorn v. Michal, 913 F.2d 327, 335 (7th Cir. 1990) (interpreting § 36-8-3-4 as applied to demotion of assistant police chief).
The reference to Ind. Code § 36-5-2-13 is irrelevant here.
To avoid the exception for upper level policy making positions, Fortner relies on the last sentence of § 36-8-3-4(m). He agrees that the mayor was entitled to demote him from chief to deputy chief. But as for his demotion from deputy chief, he says he "may not be reduced in grade to a rank below that which the member held before the member's appointment to the upper level policy making position." As Fortner views the matter, the rank he held before his appointment to the upper level policy making position from which he was demoted — deputy chief — was chief. Hence, he says, the plain language of the statute entitled him to full due process protections before he could be demoted to any rank below chief!
Defendants counter that this interpretation of the statute is absurd and completely contrary to the manifest intention of the legislature, which is to provide civil service protections for most police officers and firefighters, but to exclude from such protection any interest they might have in a department's most senior policy making positions. As defendants read the statute, any person holding an "upper level policy making position" may be demoted at will to the last merit rank the person held before being appointed to any "upper level policy making position." In Fortner's case, that last rank was fireman paramedic first class.
The court agrees with defendants on this issue of Indiana statutory interpretation. Fortner's argument places far too much weight on the use of the definite article "the" (as in "the upper level policy making position") and loses sight of common sense and the plain intent of the legislature.
A statute should be construed to ascertain and give effect to the intention of the legislature as expressed in the statute. In doing so, the objects and purposes of the statute in question must be considered, as well as the effect and consequences of such interpretation. State v. Windy City Fireworks, Inc., 600 N.E.2d 555, 558 (Ind.App. 1992) (declining to create "loophole" in fireworks law undermining legislature's manifest intention), adopted on transfer, 608 N.E.2d 699 (Ind. 1993). When interpreting a section of a statute, the court must construe it in light of all other sections of the act and with regard for the legislative intent to carry out the spirit and purpose of the act. Detterline v. Bonaventura, 465 N.E.2d 215, 218 (Ind.App. 1984) (declining to create exception in medical malpractice statute). A court must also interpret the language of a statute in a logical manner consistent with the statute's underlying policy and goals. State of Indiana v. CSX Transportation, Inc., 673 N.E.2d 517, 519 (Ind.App. 1996).
If Fortner were correct, the most senior leaders of a police or fire department would be able to protect their temporary senior rank by "burrowing," by demoting themselves one level, thereby assuring their continued presence in the most senior ranks of a new administration that does not want them there. The legislature could not have intended that result. At the very least, the legislature's use of the article "the" is not a clear indication of its intent to permit such evasion of the exclusion of upper level policy making officials from the civil service protections. The Indiana statute did not give Fortner a property interest in his position as deputy chief.
Fortner also argues that Greenfield City Code § 35.01(D) gave him a property interest in his position as deputy chief. The city ordinance provides:
The Assistant Chief and other Department officers shall be appointed by the Chief with the approval of the Board of Public Works and Safety. Such officers shall be accountable only to the Chief, and subject to removal by him with the right of appeal to the Board of Public Works and Safety.
The parties agree that the deputy chief falls within the category of "all other Department officers," so Fortner was entitled to an appeal to the Board of Public Works. The parties also agree that the defendants refused to grant Fortner an appeal before the board when he requested one.
The apparent violation of the ordinance does not give rise to a federal claim, however. Fortner needs to show he had a property interest in his position as deputy chief. The ordinance gave him a purely procedural right, but it did not impose any substantive restrictions on the city's power to demote him.
The absence of substantive criteria in the ordinance is fatal to Fortner's due process argument. See Bishop v. Wood, 426 U.S. 341, 344-47 (1976) (ordinance establishing procedures for removing employees but not imposing substantive standards for decisions did not create property interest in jobs); Cain v. Larson, 879 F.2d 1424, 1426 (7th Cir. 1989) (affirming dismissal of police officer's due process claim where state law provided only procedures, not substantive protections). There is no "property" interest in procedures themselves. Fleury v. Clayton, 847 F.2d 1229, 1231 (7th Cir. 1988), citing Olim v. Wakinekona, 461 U.S. 238, 248-51 (1983).
Conclusion
For the foregoing reasons, defendants' motion for partial summary judgment is granted and plaintiff's motion is denied. The court will hold a conference on December 13, 2001, at 4:30 p.m. in Room 330, U.S. Courthouse, Indianapolis, Indiana, to confer on the next steps in this case.
So ordered.