Shawn Durham v. Town of Galveston, Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 06 2017, 8:42 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
John F. Kautzman Jim Brugh
Edward J. Merchant Logansport, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shawn Durham, November 6, 2017
Appellant-Plaintiff, Court of Appeals Case No.
09A04-1706-MI-1322
v. Appeal from the Cass Superior
Court
Town of Galveston, Indiana The Honorable Richard A.
Appellee-Defendant Maughmer, Judge
Trial Court Cause No.
09D02-1609-MI-48
Altice, Judge.
Case Summary
[1] Following a disciplinary hearing, the Galveston Town Board (the Board), by a
3-2 vote, found that Shawn Durham committed eight of nine counts of
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insubordination and misconduct, and, as a result, terminated Durham’s
employment as Town Marshall. Durham sought judicial review of the Board’s
decision, arguing that the procedure employed by the Board violated his due
process rights and that the evidence was insufficient to support the Board’s
findings that he committed acts that amounted to insubordination and
misconduct. The trial court rejected Durham’s arguments and affirmed the
Board’s decision. On appeal, Durham argues only that the procedure employed
by the Board violated his due process rights.
[2] We affirm.
Facts & Procedural History
[3] The Board, composed of five members, is the legislative body of the Town of
Galveston and also operates as the safety board for police department purposes.
See Ind. Code § 36-8-3-4(a). In 2012, the Board appointed Durham as Town
Marshal. See Ind. Code § 36-5-7-2 (“[t]he town legislative body shall appoint a
town marshal”). In that capacity, Durham served at the pleasure of the Board.
See I.C. § 36-5-7-3. The Board had legal authority to discipline Durham by
dismissal upon determining that he was guilty of a violation of rules, neglect or
disobedience of orders, conduct unbecoming an officer, or another breach of
discipline. See I.C. § 36-8-3-4(b)(B), (C), (H), (I).
[4] On or about July 26, 2016, the Board passed, by a 3-2 vote, Resolution No.
2016-02 in which the Board terminated Durham from his position as Town
Marshal. On July 28, 2016, Durham filed a motion to set aside his termination
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on grounds that he was entitled to a hearing before his dismissal. See I.C. § 36-
5-7-3 (“before terminating or suspending a marshal who has been employed by
the town for more than six (6) months after completing the minimum basic
training requirements . . . the legislative body must conduct the disciplinary
removal and appeals procedure prescribed by IC 36-8,” which includes written
notice of disciplinary charges and notice of right to a hearing).
[5] On or about August 1, 2016, the Board acknowledged its error and passed
Resolution No. 2016-03 in which it rescinded Durham’s termination and set out
in writing nine disciplinary charges against Durham. The two board members
who opposed Resolution No. 2016-02 recused themselves from the vote on
Resolution No. 2016-03.
[6] In chronological order, the events underlying the nine charges of misconduct
and insubordination presented against Durham are as follows. In Count VII, it
was alleged that on May 2, 2016, Durham surreptitiously recorded his
conversation with board members John Hart and James Jackson and later
released that information, out of context, at the Board’s June 2, 2016 meeting.
Count VIII alleged that at the June 2 board meeting, Durham committed
misconduct when he used profane language in the presence of the public and
that such conduct amounted to insubordination as to board member Jackson
specifically.
[7] In Counts I through IV, it was alleged that Durham was guilty of
insubordination when, on June 6, 2016, he refused to comply with Hart’s
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demands that he give the Board the keys to the police department building and
vehicles, passwords to police department computers, and the code to the police
department camera system.
[8] In Count V, it was alleged that on June 8, 2016, Hart requested access to
recordings from the police department’s surveillance system in relation to
possible misuse or abuse of town property and that Durham was guilty of
insubordination because he refused to grant Hart access. Also on June 8,
Durham conducted a meeting of reserve officers at the Town’s police
department despite being directed by the Board in February 2016 to discontinue
use of reserve officers. Durham had also previously engaged a reserve officer to
accompany him in the Town’s police vehicle to perform police functions on or
about March 20, 2016, despite the Board’s February directive. Based on these
events, Durham was charged with insubordination under Count VI. Finally, in
Count IX, it was alleged that Durham committed misconduct by appearing on
and providing misleading information to the public through a local media
outlet.
[9] Durham timely requested a hearing on the disciplinary charges. Prior to the
hearing, Durham, by counsel, filed a motion for recusal with the Board seeking
to disqualify Hart and Jackson from serving as voting members of the Board
because either Hart or Jackson were specifically named in seven of the nine
disciplinary charges and presumably were going to be witnesses against him.
Durham argued that Hart and Jackson’s involvement in the conduct giving rise
to the disciplinary charges made it “impossible for [them] to sit as unbiased and
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impartial triers of fact” when the matter was to be decided by the Board.
Appellant’s Appendix Vol. II at 45. The Board, by counsel, denied Durham’s
motion.
[10] On August 24, 2016, a disciplinary hearing was held. Durham renewed his
request that Hart and Jackson be disqualified from participating as voting
members of the Board. The hearing officer, however, permitted Hart and
Jackson to testify against Durham and sit as part of the Board in deciding the
matter. After the hearing, the Board issued findings of fact and conclusions of
law as Resolution No. 2016-04. By a 3-2 vote, with Hart and Jackson and one
other board member voting in favor, Durham was found guilty of eight of the
nine charges1 of misconduct and insubordination and was terminated from his
position as Town Marshal. See I.C. § 36-5-2-13 (“[t]he town executive must
have the approval of a majority of the town council before the executive may
discharge . . . or remove a town employee”).
[11] Durham sought judicial review of the Board’s action, arguing that the
procedure employed by the Board, i.e., permitting Hart and Jackson to
participate as voting members of the Board on the instant matter after they
testified against him, violated his due process rights in that he was denied a fair
and impartial hearing. Durham also argued that the evidence did not support
the determination that he engaged in misconduct or insubordination. The trial
1
By a 5-0 vote, the Board found Durham not guilty of the allegations contained in Count IX, which
concerned Durham’s comments to a local media outlet.
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court affirmed the decision of the Board. Additional facts will be provided as
needed.
Discussion & Decision
[12] Durham’s sole challenge on appeal is that the Board violated his due process
rights when board members Hart and Jackson were permitted to testify
regarding the alleged insubordination and misconduct and then sit as voting
members of the Board in deciding the instant disciplinary action.
[13] As our Supreme Court has noted:
Due process requires a neutral, or unbiased, adjudicatory
decisionmaker. Scholars and judges consistently characterize
provision of a neutral decision-maker as one of the three or four
core requirements of a system of fair adjudicatory
decisionmaking. . . . The problem lies in defining and applying
the neutral decision-maker requirement. Some forms of bias are
permissible, even desirable, in a decision-maker. Other forms of
bias are impermissible.
Rynerson v. City of Franklin, 669 N.E.2d 964, 967 (Ind. 1996) (internal citations
omitted). Nevertheless, it is “imperative that a strict test of impartiality be
applied to the factfinding process. Id. (quoting City of Mishawaka v. Stewart, 261
Ind. 670, 677-78, 310 N.E.2d 65, 69 (1974)).
[14] We acknowledge that proceedings before administrative bodies are not required
to be conducted with all of the procedural safeguards afforded by judicial
proceedings, even when such proceedings are judicial in nature. Stewart, 261
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Ind. at 676, 310 N.E.2d at 68. We accept a lower standard in proceedings
before quasi-judicial bodies because it would be unworkable to do otherwise.
Id. There are, nevertheless, standards below which we should not go. Id.
These standards, logically, should be at the highest level that is workable under
the circumstances. Id.
[15] Durham directs us to two cases as controlling the outcome of this case: Stewart
and City of Hammond v. State ex rel. Jefferson, 411 N.E.2d 152 (Ind. Ct. App.
1980). In Stewart, the Court held that it was a violation of due process for the
city’s attorney to both prosecute the disciplinary complaint against the
firefighter as well as chair the board responsible for adjudicating guilt and
imposing sanctions. For the Court, “the appearance of bias arising from the
duality . . . overshadow[ed] the actualities . . . to such extent as to invalidate the
proceedings.” Stewart, 261 Ind. at 680, 310 N.E.2d at 70. The same result was
reached in Hammond, wherein the court determined that it was improper for the
city attorney to sit on the safety board as a decisionmaker even though an
assistant city attorney prosecuted the disciplinary action. 411 N.E.2d at 154.
The Hammond court noted that even though the city attorney did not personally
assume conflicting roles, the appearance of impropriety was evident. Id.
[16] Durham likens Hart and Jackson’s dual roles as material witnesses and
decisionmakers to that of the city attorneys in Stewart and Hammond. The
decisive factor in Stewart and Hammond, however, was the appearance of bias or
impartiality created by the dual role of the city attorney as a prosecutor and
decisionmaker in the same matter. This is not the case here. Hart and Jackson
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were not prosecuting the action, but were merely witnesses to Durham’s
conduct. Indeed, the evidence in support of some of the disciplinary charges
could only come from Hart or Jackson’s testimony. In short, the decisions in
Stewart and Hammond do not support Durham’s position.
[17] We next address Durham’s claim that his due process rights were violated
because Hart and Jackson were unable to serve as impartial members of the
Board. Durham repeatedly describes the procedure employed as being
“tantamount to having a member of a jury step out of the jury box temporarily
to become a member of the prosecution team, and then return to the jury box
for the decision-making process.” Appellant’s Brief at 12. He maintains that it
was improper for Hart and Jackson to serve in dual roles—as material witnesses
and as decision-makers.
[18] Although not attorneys, Hart and Jackson did serve dual roles. A contention
that the combination of investigative and administrative functions in the same
individuals violated due process has to “‘overcome a presumption of honesty
and integrity in those serving as adjudicators.’” Rynerson, 669 N.E.2d at 968
(quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). An inquiry into whether
the combination of investigative and adjudicative functions violates due process
is “subject to the presumption that the members of the board are persons of
‘conscience and intellectual discipline, capable of judging the particular
controversy fairly’ and will act with ‘honesty and integrity.’” Id. (quoting
Withrow, 421 U.S. at 55). Just as a judge must act with fairness and
impartiality, a tribunal must act with fairness and impartiality. See Stewart, 261
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Ind. at 677, 310 N.E.2d at 69. In the absence of “a demonstration of actual
bias,” we will not interfere with the administrative process. Ripley Cty. Bd. of
Zoning Appeals v. Rumpke of Ind., Inc., 663 N.E.2d 198, 209 (Ind. Ct. App. 1996).
[19] To prove actual bias, a party must “establish from the [Board’s] conduct actual
bias or prejudice that places [him] in jeopardy.” Tharpe v. State, 955 N.E.2d
836, 839 (Ind. Ct. App. 2011). One may not merely allege bias and prejudice
against a tribunal to escape the rigors of normal administrative procedure. New
Trend Beauty Sch., Inc. v. Ind. State Bd. of Beauty Culturist Examiners, 518 N.E.2d
1101, 1105 (Ind. Ct. App. 1988). Even if bias exists, however, “‘we must
presume the Board will act properly with or without recusal of the allegedly
biased members.’” Adkins v. City of Tell City, 625 N.E.2d 1298, 1303 (Ind. Ct.
App. 1993) (quoting New Trend Beauty School, Inc. v. Ind. State Bd. Of Beauty
Culturist Exam’rs, 518 N.E.2d 1101, 1105 (Ind. Ct. App. 1988)).
[20] Here, although the trial court noted its concerns that “substantial hostility exists
between four of Galveston’s board members”, the court did not note any
evidence indicating actual bias against Durham. Appellant’s Appendix Vol. II at
7. Contrary to Durham’s claim, the fact that Hart and Jackson were witnesses
to Durham’s conduct and testified to such does not, in and of itself,
demonstrate actual bias on their behalf. See Adkins, 625 N.E.2d at 1303 (noting
that “prior involvement in an investigation does not automatically bias or
disqualify a safety board”). Durham was afforded a hearing on the disciplinary
charges against him at which he was given the opportunity to cross-examine
both Hart and Jackson. There is nothing in the record that indicates actual bias
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on behalf of Hart and Jackson such that recusal was necessary. Indeed,
diminishing Durham’s claim of bias is that, as noted above, both Hart and
Jackson voted to find Durham not guilty of the misconduct alleged in Count
IX. In sum, the procedure employed by the Board, i.e., permitting Hart and
Jackson to testify during the disciplinary hearing and also decide the matter, did
not violate Durham’s due process rights.2
[21] Judgment affirmed.
Baker, J. and Bailey, J., concur.
2
The trial court relied upon the rule of necessity in concluding that the procedure employed by the Board did
not violate Durham’s due process rights. Having concluded that there has been no showing of actual bias
and thus, that there were no grounds upon which to disqualify Hart and Jackson, we need not address the
rule of necessity.
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