§ 36-8-3-4 — Police officers and firefighters; discipline, demotion, and dismissal; hearings; appeals; administrative leave

Indiana § 36-8-3-4

• Jurisdiction: Indiana
• Title 36: LOCAL GOVERNMENT
• Art. 8: PUBLIC SAFETY
• Ch. 3: Safety Boards; Disciplinary Procedures

Text

(a) This section also applies to all:
(1) towns and townships that have full-time, paid police or fire
departments;
(2) fire departments of fire protection districts established under
IC 36-8-11 and fire protection territories established under IC 36-8-19 that have full-time fire departments; and
(3) conservancy districts that have a full-time, paid conservancy
district marshal or deputy conservancy district marshal under IC 14-33-25.
For purposes of this section, the appropriate appointing authority of a
town, township, fire department of a fire protection territory or fire
protection district, or conservancy district is considered the safety
board of a town, township, fire department of a fire protection territory
or fire protection district, or conservancy district. In a town with a
board of metropolitan police commissioners, that board is considered
the safety board of the town for police department purposes.
(b) Except as provided in subsection (m), a member of the police or
fire department holds office or grade until the member is dismissed or
demoted by the safety board. Except as provided in subsection (n), a
member may be disciplined by demotion, dismissal, reprimand,
forfeiture, or suspension upon either:
(1) conviction in any court of any crime; or
(2) a finding and decision of the safety board that the member has
been or is guilty of any one (1) or more of the following:
(A) Neglect of duty.
(B) A violation of rules.
(C) Neglect or disobedience of orders.
(D) Incapacity.
(E) Absence without leave.
(F) Immoral conduct.
(G) Conduct injurious to the public peace or welfare.
(H) Conduct unbecoming an officer.
(I) Another breach of discipline.
The safety board may not consider the political affiliation of the
member in making a decision under this section. If a member is
suspended or placed on administrative leave under this subsection, the
member is entitled to the member's allowances for insurance benefits
to which the member was entitled before being suspended or placed on
administrative leave. In addition, the local unit may provide the
member's allowances for any other fringe benefits to which the member
was entitled before being suspended or placed on administrative leave.
(c) Before a member of a police or fire department may be
suspended in excess of five (5) days without pay, demoted, or
dismissed, the safety board shall offer the member an opportunity for
a hearing. If a member desires a hearing, the member must request the
hearing not more than five (5) days after the notice of the suspension,
demotion, or dismissal. Written notice shall be given either by service
upon the member in person or by a copy left at the member's last and
usual place of residence at least fourteen (14) days before the date set
for the hearing. The hearing conducted under this subsection shall be
held not more than thirty (30) days after the hearing is requested by the
member, unless a later date is mutually agreed upon by the parties. The
notice must state:
(1) the time and place of the hearing;
(2) the charges against the member;
(3) the specific conduct that comprises the charges;
(4) that the member is entitled to be represented by counsel;
(5) that the member is entitled to call and cross-examine
witnesses;
(6) that the member is entitled to require the production of
evidence; and
(7) that the member is entitled to have subpoenas issued, served,
and executed in the county where the unit is located.
If the corporation counsel or city attorney is a member of the safety
board of a city, the counsel or attorney may not participate as a safety
board member in a disciplinary hearing concerning a member of either
department. The safety board shall determine if a member of the police
or fire department who is suspended in excess of five (5) days shall
continue to receive the member's salary during the suspension.
(d) Upon an investigation into the conduct of a member of the police
or fire department, or upon the trial of a charge preferred against a
member of either department, the safety board may compel the
attendance of witnesses, examine them under oath, and require the
production of books, papers, and other evidence at a meeting of the
board. For this purpose, the board may issue subpoenas and have them
served and executed in any part of the county where the unit is located.
If a witness refuses to testify or to produce books or papers in the
witness's possession or under the witness's control, IC 36-4-6-21
controls to the extent applicable. The proper court may compel
compliance with the order by attachment, commitment, or other
punishment.
(e) The reasons for the suspension, demotion, or dismissal of a
member of the police or fire department shall be entered as specific
findings of fact upon the records of the safety board. A member who is
suspended for a period exceeding five (5) days, demoted, or dismissed
may appeal the decision to the circuit or superior court of the county in
which the unit is located. However, a member may not appeal any other
decision.
(f) An appeal under subsection (e) must be taken by filing in court,
within thirty (30) days after the date the decision is rendered, a verified
complaint stating in concise manner the general nature of the charges
against the member, the decision of the safety board, and a demand for
the relief asserted by the member. A bond must also be filed that
guarantees the appeal will be prosecuted to a final determination and
that the plaintiff will pay all costs adjudged against the plaintiff. The
bond must be approved as bonds for costs are approved in other cases.
The unit must be named as the sole defendant, and the plaintiff shall
have a summons issued as in other cases against the unit. Neither the
safety board nor the members of it may be made parties defendant to
the complaint, but all are bound by service upon the unit and the
judgment rendered by the court.
(g) In an appeal under subsection (e), no pleading is required by the
unit to the complaint, but the allegations are considered denied. The
unit may file a motion to dismiss the appeal for failure to perfect it
within the time and in the manner required by this section. If more than
one (1) person was included in the same charges and in the same
decision of dismissal by the safety board, then one (1) or more of the
persons may join as plaintiffs in the same complaint, but only the
persons that appeal from the decision are affected by it. The decision
of the safety board is final and conclusive upon all persons not
appealing. The decision appealed from is not stayed or affected
pending the final determination of the appeal, but remains in effect
unless modified or reversed by the final judgment of the court.
(h) A decision of the safety board is considered prima facie correct,
and the burden of proof is on the party appealing. All appeals shall be
tried by the court. The appeal shall be heard de novo only upon any
new issues related to the charges upon which the decision of the safety
board was made. The charges are considered to be denied by the
accused person. Within ten (10) days after the service of summons the
safety board shall file in court a complete transcript of all papers,
entries, and other parts of the record relating to the particular case.
Inspection of these documents by the person affected, or by the person's
agent, must be permitted by the safety board before the appeal is filed,
if requested. Each party may produce evidence relevant to the issues
that it desires, and the court shall review the record and decision of the
safety board upon appeal.
(i) The court shall make specific findings and state the conclusions
of law upon which its decision is made. If the court finds that the
decision of the safety board appealed from should in all things be
affirmed, its judgment should state that, and judgment for costs shall
be rendered against the party appealing. If the court finds that the
decision of the safety board appealed from should not be affirmed in all
things, then the court shall make a general finding, setting out
sufficient facts to show the nature of the proceeding and the court's
decision on it. The court shall either:
(1) reverse the decision of the safety board; or
(2) order the decision of the safety board to be modified.
(j) The final judgment of the court may be appealed by either party.
Upon the final disposition of the appeal by the courts, the clerk shall
certify and file a copy of the final judgment of the court to the safety
board, which shall conform its decisions and records to the order and
judgment of the court. If the decision is reversed or modified, then the
safety board shall pay to the party entitled to it any salary or wages
withheld from the party pending the appeal and to which the party is
entitled under the judgment of the court.
(k) Either party shall be allowed a change of venue from the court
or a change of judge in the same manner as such changes are allowed
in civil cases. The Indiana Rules of Trial Procedure govern in all
matters of procedure upon the appeal that are not otherwise provided
for by this section.
(l) An appeal takes precedence over other pending litigation and
shall be tried and determined by the court as soon as practical.
(m) 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.
(n) If the member is subject to criminal charges, the board may
place the member on administrative leave until the disposition of the
criminal charges in the trial court. Any other action by the board is
stayed until the disposition of the criminal charges in the trial court. An
administrative leave under this subsection may be with or without pay,
as determined by the board. If the member is placed on leave without
pay, the board, in its discretion, may award back pay if the member is
exonerated in the criminal matter.
[Pre-Local Government Recodification Citations: subsection
(a) formerly 19-1-3.5-1; subsection (b) formerly 18-1-11-3 part;
19-1-28-1 part; subsection (c) formerly 18-1-11-3 part; 19-1-3-2;
subsections (d), (e), (f), (g), (h), (i), (j), (k), (l), (m) formerly
18-1-11-3 part.]
As added by Acts 1981, P.L.309, SEC.52. Amended by Acts
1981, P.L.315, SEC.2; P.L.104-1983, SEC.5; P.L.58-1989, SEC.3;
P.L.265-1993, SEC.1; P.L.234-1996, SEC.1; P.L.34-1999, SEC.5;
P.L.57-2023, SEC.1; P.L.122-2023, SEC.21.