                                                                               FILED
                                                                           Oct 04 2018, 8:36 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Edward J. Merchant                                         Justin A. Schramm
      Ruckelshaus Kautzman Blackwell &                           Schramm Law Group, P.C.
      Bemis, LLP                                                 Winamac, Indiana
      Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Joseph Budner,                                             October 4, 2018
      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 18A-MI-984
              v.                                                 Appeal from the Starke Circuit
                                                                 Court
      Incorporated Town of North                                 The Honorable Kim Hall, Judge
      Judson, Indiana,                                           Trial Court Cause No.
      Appellee-Respondent.                                       75C01-1710-MI-45




      Najam, Judge.


                                         Statement of the Case
[1]   Joseph Budner appeals the trial court’s order dismissing his petition for judicial

      review, which he had filed following the termination of his job as a deputy

      Town Marshal for the North Judson Police Department (“NJPD”). Budner

      presents a single issue for our review, namely, whether the trial court erred


      Court of Appeals of Indiana | Opinion 18A-MI-984 | October 4, 2018                           Page 1 of 8
      when it granted the Town of North Judson’s (“the Town”) motion to dismiss

      under Trial Rule 12(B)(6) and denied him a hearing to which he was entitled

      under Indiana Code Section 36-8-3-4. We reverse and remand for further

      proceedings.


                                   Facts and Procedural History
[2]   In late April 2017, Budner, a full-time deputy Town Marshal for the NJPD, had

      a medical condition that required him to take leave from his job for several

      weeks. On July 17, when Budner had not returned to his job, the NJPD Town

      Marshal, Kelly Fisher, wrote Budner a letter stating in relevant part as follows:


              This letter serves as notice that your twelve (12) workweeks of
              leave have been expended as of July 17, 2017, as your FMLA
              [(Family and Medical Leave Act)] leave was initiated on April
              24, 2017. As you have been a valuable member of our police
              department for a number of years prior to your leave of absence
              under the federal FMLA, the Town of North Judson will give
              you until July 31, 2017, to present the Clerk-Treasurer of the
              Town of North Judson with a letter from your treating physician
              that you are medically cleared to return to full, active
              employment, without any physical restrictions or limitations that
              would hamper your ability to perform the essential functions of
              your job as a police officer for the Incorporated Town of North
              Judson Police Department. Failure to deliver this medical
              clearance will result in our having to release you from
              employment with our police department, as the Town will have
              to hire a replacement due to staffing and safety concerns.




      Court of Appeals of Indiana | Opinion 18A-MI-984 | October 4, 2018          Page 2 of 8
      Appellee’s App. Vol. II at 2. Budner did not respond to that letter, and on

      August 22, Marshal Fisher wrote Budner another letter stating in relevant part

      as follows:


              As we have still not received a letter from your treating physician
              indicating the above-mentioned criteria, and as an additional six
              (6) weeks have elapsed since my last letter, we are no longer able
              to hold your position with the Town of North Judson Police
              Department, and as of the end of the workday on August 25,
              2017, we must release you from your current employment.


      Id. at 3.


[3]   On August 28, Budner, by counsel, wrote a letter to the NJPD requesting a

      hearing regarding his discharge pursuant to Indiana Code Section 36-8-3-4.

      After the NJPD denied that request, Budner filed a petition for judicial review

      naming the Town as the respondent. The Town moved to dismiss Budner’s

      petition under Trial Rule 12(B)(6) alleging in relevant part that Budner was not

      entitled to a hearing. The trial court dismissed Budner’s petition following a

      hearing on the Town’s motion. This appeal ensued.


                                      Discussion and Decision
[4]   Budner contends that the trial court erred when it dismissed his petition for

      judicial review. The standard of review on appeal of a trial court’s grant of a

      motion to dismiss for the failure to state a claim is de novo and requires no

      deference to the trial court’s decision. Bellows v. Bd. of Comm’rs of Cty. of Elkhart,

      926 N.E.2d 96, 110 (Ind. Ct. App. 2010). The grant or denial of a motion to


      Court of Appeals of Indiana | Opinion 18A-MI-984 | October 4, 2018            Page 3 of 8
      dismiss turns only on the legal sufficiency of the claim and does not require

      determinations of fact. Id. “‘A motion to dismiss under Rule 12(B)(6) tests the

      legal sufficiency of a complaint: that is, whether the allegations in the

      complaint establish any set of circumstances under which a plaintiff would be

      entitled to relief.’” Id. (quoting Lei Shi v. Cecilia Yi, 921 N.E.2d 31, 36 (Ind. Ct.

      App. 2010)).


[5]   Indiana Code Section 36-5-7-6(c) (2018) provides in relevant part that a town

      marshal


              may dismiss a deputy marshal at any time. However, a deputy
              marshal who has been employed by the town for more than six
              (6) months after completing the minimum basic training
              requirements[1] . . . may be dismissed only if the procedure
              prescribed by section 3 of this chapter is followed.


[6]   Indiana Code Section 36-5-7-3 provides in relevant part that the town marshal


              serves at the pleasure of the town legislative body. However,
              before terminating or suspending a marshal who has been
              employed by the town for more than six (6) months . . . , the
              legislative body must conduct the disciplinary removal and
              appeals procedure prescribed by I[.]C[. §] 36-8 for city fire and
              police departments.




      1
        There is no dispute that, at the time his employment was terminated, Budner had been employed as a
      deputy town marshal for at least six months after completing the minimum basic training requirements.

      Court of Appeals of Indiana | Opinion 18A-MI-984 | October 4, 2018                              Page 4 of 8
[7]   Indiana Code Section 36-8-3-4 (“the statute”) provides in relevant part as

      follows:


              (a) This section also applies to all towns and townships that have
              full-time, paid police or fire departments. For purposes of this
              section, the appropriate appointing authority of a town or
              township is considered the safety board of a town or
              township. . . .

              (b) . . . 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.


      Court of Appeals of Indiana | Opinion 18A-MI-984 | October 4, 2018           Page 5 of 8
                                 (I) Another breach of discipline. . . .

               (c) Before a member of a police or fire department may be . . .
               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 . . .
               dismissal. . . . 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.


      (Emphases added).


[8]   Here, the parties dispute whether Budner was entitled to a hearing under the

      statute. Budner contends that, because he requested a hearing under the statute

      within five days of his termination notice, a hearing was mandatory. The Town

      responds that the statute only applies when an officer is terminated “for

      disciplinary reasons,” which is not the case here.2 Appellee’s Br. at 7. We

      agree with Budner.


[9]   First, in the Town’s August 22, 2017, letter to Budner, the Town stated the

      reasons for the termination of his employment as follows:




      2
        The Town does not assert any challenge to the trial court’s subject matter jurisdiction on cross appeal. To
      the extent the Town suggests that the trial court lacked jurisdiction because Budner’s petition presents a
      federal question under FMLA, the Town is incorrect. Our Supreme Court has observed that, under 29
      U.S.C. § 2617, an employee alleging an employer’s interference with FMLA rights or a retaliatory discharge
      may bring his suit either in federal or state court. Gary Cmty. Sch. Corp. v. Powell, 906 N.E.2d 823, 828 (Ind.
      2009). Thus, if Budner’s petition is deemed to present an FMLA claim, the trial court has jurisdiction to
      consider that claim on remand.

      Court of Appeals of Indiana | Opinion 18A-MI-984 | October 4, 2018                                   Page 6 of 8
               I want to call your attention to the fact that I had asked for a
               written letter from your treating physician, indicating that you
               would able to return to full, active employment, by July 26, 2017,
               without physical restrictions or limitations that would hamper
               your ability to perform the essential functions of your job as a
               police officer for the Incorporated Town of North Judson Police
               Department. As we have still not received a letter from your
               treating physician indicating the above-mentioned criteria, and as
               an additional six (6) weeks have elapsed since my last letter, we
               are no longer able to hold your position with the Town of North
               Judson Police Department, and as of the end of the workday on
               August 25, 2017, we must release you from your current
               employment.


       Appellee’s App. Vol. II at 3. Thus, the Town terminated Budner’s employment

       because of his incapacity and absence without leave, which are both explicitly

       delineated in subsection (b)(2) of the statute. We hold that, under the plain

       language of the statute, Budner was entitled to a hearing.


[10]   Second, this court has previously rejected a town council’s argument that the

       statute applies only to a town marshal’s termination for disciplinary reasons. In

       Cook v. Atlanta, Indiana Town Council, the Atlanta town council terminated the

       employment of Cook, the town marshal, after he had attempted to file criminal

       charges against a member of the town council. 956 N.E.2d 1176, 1177 (Ind. Ct.

       App. 2011). Cook requested a hearing under the statute, which was denied,

       and the trial court dismissed his petition for judicial review. On appeal, the

       parties disputed in relevant part whether the statute applied to Cook’s

       termination of employment given that “‘[t]here were no charges of misconduct

       alleged against him’” and he was not removed “for ‘cause.’” Id. at 1179. We

       Court of Appeals of Indiana | Opinion 18A-MI-984 | October 4, 2018        Page 7 of 8
       held that, based on the record and applicable statutory provisions, the Atlanta

       town council “was not free to terminate Cook’s employment as its town

       marshal without conducting the removal and appeals procedure prescribed by

       Ind. Code [Art.] 36-8 and adhering to the requirements of subsections (b)

       through (l) of Ind. Code § 36-8-3-4.” Id. at 1181. Accordingly, we reversed and

       remanded for further proceedings.


[11]   Here, given the plain language of Indiana Code Section 36-8-3-4 and our

       opinion in Cook, we hold that Budner was entitled to a hearing regarding the

       termination of his employment. We reverse the trial court’s dismissal of

       Budner’s petition for judicial review for failure to state a claim upon which

       relief can be granted and remand for further proceedings.3


[12]   Reversed and remanded for further proceedings.


       Crone, J., and Pyle, J., concur.




       3
         Whether Budner is entitled to any back pay depends on whether the safety board finds in his favor
       following a hearing and the result of any appeals that may follow that hearing. See I.C. § 36-8-3-4(j).

       Court of Appeals of Indiana | Opinion 18A-MI-984 | October 4, 2018                                   Page 8 of 8
